In HC 4327/08, Diocesan Trustees for the Diocese of Harare v Church of the Province of Central Africa, the applicant seeks the following order –

“It is ordered that:

1. The following persons be and are hereby declared the Diocesan Trustees of the Diocese of Harare:

(i) Bishop Dr. Nolbert Kunonga.

(ii) Mr. Beavan Michael Gundu.

(iii) Mr. Justin M. Nyazika.

(iv) Mr. P.Majokwere.

(v) Mr. Onias Gatawa.

(vi) Mr. Alfred Tome

(vii) Mr. Winter Regie Shamuyarira

2. The property of the Diocese of Harare, whether movable or immovable, owned by the church, within the Diocese, vests in the Diocesan Trustees mentioned in para 1. above.

3. The respondent be and is hereby ordered to give vacant possession/occupation, and control, of the assets of the applicant which the respondent occupies, or possesses, and or, controls, to the Diocesan Board within seven days of the date of this order, failing which , the Deputy Sheriff, with the assistance of the Zimbabwe Republic Police, be and is hereby authorized, on the direction of  the Board, to take occupational possession of any assets of the Diocese, and to hand over any assets, or possession, to the Board.

4. Costs of suit.”

In case no. HC 2792/09, Diocesan Trustees for the Diocese of Harare v Church of the Province of Central Africa, the applicants seek the following provisional order –

“Terms of the Interim Order

(a) That the consecration of a new Bishop by the respondent, on 26 July 2009, or any date thereafter, be and is hereby stopped pending the discharge or confirmation of this order on the return date.”

Terms of the Final Order Sought

(a) That it be declared that Dr. Nolbert Kunonga is still the Bishop of the Diocese of Harare;

(b) That the respondent is barred from recognising any Bishop of the Diocese of Harare until there has been compliance with the Constitution of the respondent; and

(c) That it pays costs of suit.”

In a letter dated 21 September 2007, addressed to the Archbishop and Primate of the Church of the Province of Central Africa,..., Dr. Nolbert Kunonga, in his capacity as Bishop of the Diocese of Harare, had written concerning the formal withdrawal of the Diocese of Harare from the Church of the Province of Central Africa as follows –

“The above refers, from the Bishop of the Diocese of Harare, Diocesan Synod, Standing Committee, Diocesan Trustees, and the whole body of the Church of the Diocese...,.

Consistent, therefore, with our 61^st Session of Diocesan Synod on the 4^th of August 2007, in accordance with the Scriptures, and the will of God, we were mandated by our Synod to dissociate, and sever ties with any individual, group of people, organisation, institution, diocese, province, which sympathizes, or compromises, with homosexuality. We, the Diocese of Harare, would like it to be put on record that with effect from 4^th August 2007, and as confirmed by the Provincial Synod, we are withdrawing from the Church of the Province of Central Africa...,.”

On 16 October 2007, the Dean of the Province of Central Africa and the Bishop of Northern Zambia..., responded in a letter headed “Acceptance of the Withdrawal of the Bishop of Harare from the Church of the Province of Central Africa” -

“I am in receipt of your letter dated 21 September 2007, addressed to the former Archbishop of the Province, the Most Reverend Dr. B.A.Malongo, advising him of the formal withdrawal of the Diocese of Harare from the Church of the Province of Central Africa.

I would first like to advise you that it is constitutionally and canonically impossible to withdraw the Diocese of Harare from the Church of the Province of Central Africa because a diocese, in accordance with the Constitution of the Church of the Province of Central Africa, forms an integral part of the Province. Any act that purports to withdraw a diocese is unconstitutional and uncanonical, as this action is tantamount to altering the very structure and essence of the Province. The Constitution and Canons of the Church of the Province of Central Africa specifically stipulate that any alteration of the Province would require the approval of the Provincial Synod, after the Synod of each diocese in the Province has also approved, and confirmed by the Provincial Synod by a two-thirds majority of those present, and has subsequently been endorsed by the Archbishop of Canterbury as not affecting the terms of Communion between the Church of this Province, the Church of England, and the rest of the Anglican Communion.

Consequently, heading your letter stating 'Formal Withdrawal of the Diocese of Harare from the Province of Central Africa' is unacceptable and misleading. We, however, as the Dean of the Province of Central Africa, accept and acknowledge that you and some of your supporters have, by notice of your letter, severed relationship with the Province of Central Africa.

Therefore, I declare that the See of Harare is, with immediate effect, vacant, and, in accordance with Canon 14(1), I shall be appointing a Vicar General to hold office whilst the necessary steps are taken for the holding of an elective assembly to elect the next Bishop of the Diocese of Harare.

Given your leaving the Church of the Province of Central Africa, we direct that all properties and assets belonging to the Province should be surrendered immediately to the Vicar General whose name we shall give you in a few days time.”  

Certain developments and measures then followed, including the excommunication of the Bishop of Harare, some of the clergy, and laity, the purported formation of the new province, and the ratification of the actions of the Dean of the Province.

Now, if what the applicants did constituted an offence in terms of the Canons of the Church, then they should have been charged, tried, and punished, accordingly. Excommunication is a form of punishment following a trial. It has not been shown that any such trial took place.

The formation of a new Province may be an act in violation of the Canons of the Church, and the Church was within its rights to punish such act in terms of its own procedures. The courts will not interfere, for example, as regards whether or not certain acts are punishable by excommunication or not, as these are issues within the ecclesiastical competency of the respondent. However, no such trials, in terms of Canons of the Church, have taken place. All that the province has done is to make declarations in direct conflict with specific provisions of the Canons.

Canon 24(1) provides that any Bishop, Priest, or Deacon, of the Province “may be accused of and tried in Church Court” for a variety of offences which include schism, and wilful disobedience of Church laws and authorities. There are strict procedures relating to the prosecution of a Bishop, or Priest in terms of Canon 24(2) –

 “No original proceedings shall be instituted in any Church Court -

(a) ...,.

(b) Against a Bishop of the Province, unless it be preferred by at least three priests licenced in the Province, or by two Bishops of the Province, or, if it relates to matters other than faith and doctrine, by at least three priests and three Church Wardens or Councillors, all of the dioceses of the accused Bishop;

(c) Against a Priest, or Deacon, unless leave shall have been given in writing by the Bishop;

(d) ...,.”

The Canons also provide for the need for the issuance of notices to accused persons, the right of appeal in respect of any conviction, the suspension of decisions of the court pending appeal, etc (Canon 26).

There is nothing in the pleadings showing that any of the above things were done, and actual trials held on the basis of which the sentence of excommunication was eventually pronounced.

Nothing.

Re: HC 4327/08

The analysis pertaining to the issue of locus standi has already led to the conclusion that the applicants do have locus standi to bring this application, that they have not been lawfully removed from their positions as trustees, and that until they are so removed, they continue to hold those positions and the property of the Church, in trust.

All the parties in this case claim to be members of the Anglican Church but belonging to rival factions. They are, however, engaged in vicious court battles concerning their legitimacy and entitlement to Church property.

On 24 July 2009 the applicant obtained a provisional order against the first respondent from HLATSHWAYO J under case number HC2792/09 in the following terms:

“TERMS OF THE INTERIM ORDER

(a) That the consecration of a new Bishop by the respondent on 26 July 2009, or any date thereafter, be and is hereby stopped pending the discharge or confirmation of this order on the return date.

TERMS OF THE FINAL ORDER SOUGHT

(a) That it be declared that Dr. Nolbert Kunonga is still the Bishop of the Diocese of Harare.

(b) That the respondent is barred from recognizing any Bishop of the Diocese of Harare until there has been compliance with the Constitution of the respondent.

(c) That it pays costs of suit.”

On the same date HLATSHWAYO J, under case number HC4327/09 granted a declaratory declaring Nolbert Kunonga's Board of Trustees as the legitimate Board of Trustees for the Diocese of Harare. The same order further affirmed that the said Diocese's property is vested in the applicant, that is to say, The Diocesan Trustees for the Diocese of Harare.

Aggrieved by both judgments, the first respondent lodged an appeal to the Supreme Court on the same date, the 24^th of July 2009.

Notwithstanding HLATSHWAYO J's order to the contrary, the first respondent proceeded to consecrate the second respondent as the new Bishop for the Diocese of Harare. In doing so, the respondents were relying on the well-known rule of practice in the superior courts that an appeal suspends the decision appealed against.

The applicant responded by filing this urgent chamber application seeking to enforce HLATSHWAYO J's orders notwithstanding the noting of an appeal against his orders.

The application is premised on numerous grounds – these include:

(1) That the appeal was mala fide in that it was lodged for the mere purpose of by-passing HLATSHWAYO J's orders.

The applicant is the Church of the Province of Central Africa, and is responsible for the affairs of the Anglican Church in Central Africa. The first respondent is its Bishop for Manicaland with whom it has pending cases before the courts for the determination of whether or not he is still its Bishop.

The first respondent leads a faction of the Anglican Church in Manicaland.

The applicant filed this urgent application on the following facts.

On 18 March 2010 the applicant's Registrar, who is the deponent of its founding affidavit, received a call from a member of the public who inquired from him “whether the purchase price of Stand Numbers 91 and 92 Second Street, Mutare, were negotiable.” These are Church assets over which the two factions of the Anglican Church in Manicaland have a pending case before the courts.

The first respondent's faction had, in August 2009, given the second respondent a mandate to sell Stands 91 and 92.

Alarmed by the inquiry, the applicant filed this urgent application seeking a provisional order interdicting the respondents from selling or in any way effecting transfer of the Church's assets...,.

The first respondent does not deny giving the second respondent the mandate to sell the Stands, but says it suspended the mandate when it agreed to the consent order of 12 October 2009.

The first and second respondents opposed the application and raised the following preliminary issues -

1. That the application is not urgent.

2. That the matter is res judicata; and

3. That the applicant and the first respondent do not have locus standi to sue and be sued in this case.

The applicant, in his founding affidavit, states that he is a duly consecrated and enthroned Bishop currently heading the Anglican Diocese of Manicaland. The second applicant is the Anglican Board of Trustees for the Diocese of Manicaland, whereas the first respondent is the Church of the Province of Central Africa.

On 23 September 2007, the Rt. Reverent Elson Jakazi addressed a letter to the Archbishop of the Church of the Province of Central Africa and the Bishop of Upper Shire notifying them of its withdrawal from the Church of the Province of Central Africa. The withdrawal was prompted by disagreements on issues of homosexuality. The letter reads -

“Your Grace

Notification of Withdrawal of the Anglican Diocese of Manicaland from the Church of the Province of Central Africa

The above subject refers.

To put to rest speculation from your office, the Church of the Province of Central Africa, and the rest of the Anglican community, this letter comes to you as confirmation that the Anglican Diocese of Manicaland has withdrawn from the Church of the Province of Central Africa with effect from 21 September 2007. The resolution by the Diocesan community, which is attached, and my submission to the Provincial Synod when I moved a motion on the need for the dissolution of the Province, also attached, and the minutes of the Standing Committee, is a statement of emphasis on this matter by the Standing Committee.

This, your Grace, is the kind of seriousness that we take this matter.

Yours faithfully

Signed

The Rt. Revt Elton Jakazi

Cc All Bishops of the Church of Central Africa; The Bishops of the Church of the Province of Central Africa.”

The Bishops of the Province of Central Africa responded by issuing a statement rejecting the withdrawal of the Diocese of Manicaland but accepted the withdrawal of the first applicant as an individual. The statement reads in part -

“Bishops of the Province of Central Africa Statement on the Diocese of Manicaland Issue

We, the undersigned Bishops of the Church of the Province of Central Africa, at the Extraordinary Episcosal Synod held on 24 December 2007 at the Lusaka Hotel, Zambia, state that we were consulted by the Dean of the Province of Central Africa, the Rt. Revt Chama in connection with the contents of the letter of 23 September 2007 addressed to the Archbishop of the Church of the Province of Central Africa (CPOA) concerning the withdrawal by Bishop Jakazi of the Diocese of Manicaland from the CPOA.

We unanimously concur that:

1. The fundamental declarations, articles of the Constitution, canons, and laws of the CPOA, do not permit unilateral withdrawal of a Diocese from the Province, even if, as alleged by Bishop Jakazi but challenged by many, the Diocesan Standing Committee expresses a desire no longer to be associated with the Province.

2. Bishop Jakazi was, inter alia, expressing his personal attitude and intention to sever all ties with the Province, and was himself withdrawing from the Province.

3. In the circumstances, we accept his personal resignation and withdrawal from the body of the CPOA.” (my emphasis)

The applicant, in a letter written by his Diocesan Registrar, dated 31 October, and subsequently followed up by his own letter, attempted to recant and retract his withdrawal from the Central Province of the Church of Central Africa.

The retraction was met with outright rejection. On 20 December 2007, Bishop Albert Chama advised him of the same in the following terms -

“We write to advise you that following the letter of 31 October 2007, written, on your instructions, by the Diocesan Registrar of Manicaland, Mr. Peter Makombe, retracting your withdrawal from the Church of the Province of Central Africa as per your letter of 23 September 2007 addressed to the former Archbishop of Central Africa, Dr. Bernard Amos Malango, copied to all Bishops of the Province, the Extraordinary Episcosal Synod held at the hotel on 20 December 2007 considered your letter of retraction and decided to uphold the earlier decision taken, and communicated to you, that you are no longer a Bishop of the Church of the Province of Central Africa.

Consequently we, as Dean of the Province of Central, immediately appoint a Vicar-General for the Diocese of Manicaland pending the election of the next Bishop.”    

The first respondent followed up by appointing the second and third respondents in terms of the above letter.

It is an established rule that resignation is a unilateral, voluntary act which takes effect as soon as the resignation has been communicated to the correct person or authority. In the case of Mazengi v Standard Chartered Bank & Anor (2) ZLR 137 this court held that a letter of resignation constitutes a final act of termination by an employee.

What this means is that once the first applicant's resignation letter was received by the Archbishop of the Central African Province of Central Africa, the first applicant automatically ceased to be an employee or member of that Church organization – without any further formalities. Having ceased to be an employee or member of the Church organization, he automatically stripped himself of any rights and privileges arising from the contract of employment, membership, or his status as Bishop of that Church organization.

The first applicant was not dismissed. His was a voluntary act to resign from that Church organization. That being the case, he can hardly be heard to complain or cry foul.  Any appeal or review which he may launch means that he is appealing or seeking a review of his own conduct. This is wholly untenable and illogical, such that it must be incompetent at law. The applicant, having voluntarily divested himself of all rights and privileges accruing to a member, employee, or Bishop, of the Anglican Church Province of Central Africa, he has no residual rights to meddle in the affairs of that organization by barring the appointment of replacement staff.

After hearing submissions from counsel, I dismissed the above application and indicated that my reasons would follow. I now set them out.

On 28 April 2010 this court issued an order barring the applicants from interfering with the first respondent's worshipping at a farm in Mazowe. The order also specifically granted the first respondent access to the farm for the purposes of worshipping and conducting Church services.

The order was granted unopposed.

On 14 May 2010, the applicants approached this court on a certificate of urgency seeking a final order staying the execution of the order granted on 28 April 2010 and also rescinding the order. In the interim, the applicant prayed for an order barring the respondents from conducting any Church service at the farm.

The applicant and the respondents were once one Church, worshipping together at the farm in Mazowe. The founder of their Church, one Mudyiwa Dzangare passed away in May 1989 at the farm – where he was buried. In May of each year his followers hold a congress in his memory. Before his death, Mudyiwa Dzangare is alleged to have told his followers that he would resurrect and presumably come back to lead his flock. A point of divergence emerged amongst his followers with the applicant believing that their dead leader is yet to resurrect in his old form – an event that they await whilst praying at the farm where he died. The first respondent, on the other hand, believes that their founder has resurrected in the form of a baby girl who lives in Guruve – whom they now follow as the leader.

The facts of the matter are these.

On 23 September 2007, the first applicant, who was then a Bishop of the Anglican Church of the Province of Central Africa, the first respondent in this matter, and Head of the Diocese of Manicaland, addressed a letter to the Archbishop of the first respondent, and the Bishop of Upper Shire, notifying them of the withdrawal of the Diocese of Manicaland from the first respondent. The letter read as follows:

“Your Grace,

RE: NOTIFICATION OF WITHDRAWAL OF THE ANGLICAN DIOCESE OF MANICALAND FROM THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA

The above subject refers.

To put to rest speculation from your office, the Church of the Province of Central Africa and the rest of the Anglican community, this letter comes to you as confirmation that the Anglican Diocese of Manicaland has withdrawn from the Church of the Province of Central Africa with effect from 21 September 2007.

The resolution by the Diocesan committee, which is attached, and my submission to the Provincial Synod when I moved a motion on the need for the dissolution of the Province, also attached, and the minutes of the Standing Committee, is a statement of emphasis on this matter by the Standing Committee.

This, your Grace, is the kind of seriousness that we take of the matter.

Yours faithfully

Signed

The Rt Revd. Elson Jakazi  

Cc All Bishops of the Church of the Province of Central Africa.”

The Bishops of the first respondent replied by issuing a statement acknowledging that the first applicant and his supporters had personally resigned or withdrawn from the first respondent and accepting the first applicant's resignation as an individual but asserting that the Diocese of Manicaland could not be withdrawn from the first respondent except in accordance with the latter's Constitution. The statement read in part:

“We unanimously concurred that:

1. The Fundamental Declarations, Articles of the Constitution, Canons and laws of the C.P.C.A. do not permit the unilateral withdrawal of a Diocese from the Province even if, as alleged by Bishop Jakazi, but challenged by many, the Diocesan Standing Committee of that Diocese unanimously expresses a desire to no longer be associated with the Province.

2. Bishop Jakazi was, inter alia, expressing his personal attitude and intention to sever all ties with the Province and was himself withdrawing from the Province.

3. In the circumstances, we accepted his personal resignation and withdrawal from the body of the C.P.C.A.”

Thereafter, on 31 October 2007, in a letter written on his instructions by his Diocesan Registrar, the first applicant sought to retract his withdrawal from the first respondent. The retraction was not accepted by the first respondent, who, through its Bishop Albert Chama, wrote back as follows:

“We write to advise you that following the letter of 31 October 2007, written on your instructions by the diocesan Registrar of Manicaland, Mr Peter Makombe, retracting your withdrawal from the Church of the Province of Central Africa as per your letter of 23 September 2007, addressed to the former Archbishop of Central Africa, Dr. Bernard Amos Malango, and copied to all Bbishops of the Province, the Episcopal Synod held at the hotel on 20 December 2007 considered your letter of retraction and decided to uphold the earlier decision taken and communicated to you that you are no longer a Bishop of the Church of the Province of Central Africa.

Consequently, we as Dean of the Province of Central Africa, immediately appoint a Vicar General for the Diocese of Manicaland pending the election of the next Bishop.”

Following upon this letter, the first respondent proceeded to appoint the second and third respondents as Bishops.This prompted the applicants to file an urgent chamber application in the High Court seeking an order setting aside the appointment of the second and third respondents and declaring the first applicant to be the reigning Bishop for the Diocese of Manicaland until such time as the applicants' appeal has been determined in terms of the provisions of the first respondent's Constitution and canons.

The learned Judge, in dismissing the application, said:

“It is an established rule that resignation is a unilateral voluntary act which takes effect as soon as the resignation has been communicated to the correct person or authority. In the case of Muzengi v Standard Bank & Anor (2) ZLR 137 this Court held that a letter of resignation constitutes a final act of termination by an employee.

What this means is that once the first applicant's resignation letter was received by the Archbishop of the Church of the Province of Central Africa the first applicant automatically ceased to be an employee or member of that church organization without any further formalities.

Having ceased to be an employee or member of the church organization he automatically stripped himself of any rights and privileges arising from the contract of employment, membership, or his status as Bishop of that church organization. The 1st applicant was not dismissed. His was a voluntary act to resign from that church organization. That being the case, he can hardly be heard to complain or cry foul. Any appeal or review which he may launch means that he is appealing or seeking a review of his own conduct. This is wholly untenable and illogical such that it must be incompetent at law.

The applicant, having voluntarily divested himself of all rights and privileges accruing to a member, employee or Bishop of the Anglican Church of the Province of Central Africa he has no residual rights to meddle in the affairs of that organization by barring the appointment of replacement staff.”

The facts are common cause. The law is clear. Resignation is a unilateral act which takes effect upon being communicated. See Riva v NSSA 2002 (1) ZLR 412 (H)…, where the Court said:

“It is common cause between parties that the giving of notice is a unilateral act; it requires no acceptance thereof or concurrence therein by the party receiving the notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it. It seems to me to follow that notice once given is final and cannot be withdrawn except obviously with consent…,.”

See also Muzengi v Standard Bank Zimbabwe & Anor 2002 (1) ZLR 334 (S)…,.

The above cases clearly show that the first applicant could not unilaterally withdraw his resignation from the first respondent.

The first applicant has submitted that he did not withdraw in his individual capacity but as a Diocese.

This issue was settled in The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare SC48-12 where the Bishop of Harare raised the same argument as is now being raised by the applicants herein. The Court held that the Bishop of Harare had resigned his office.

Further, as the respondents submitted, the letter of resignation demonstrates quite clearly that the stated position taken therein was that of the first applicant and others who wished to withdraw from the first respondent. “This, your Grace, is the kind of seriousness that we take of the matter” said the first applicant in the letter.

Moreover, since the Diocese itself could not be withdrawn by the applicants from the first respondent, it seems to me the respondents are correct in their submission that the applicants were withdrawing in their individual capacities.

In view of the above, the applicants have not established that there are any prospects of success on appeal. It follows that, in the result, the application must fail.

The applicants in this matter are the purported Bishop of a church together with the Church as the second applicant. The order sought is temporary relief as follows:

1. The respondents and their agents are ordered to vacate the applicant's Temple at Number 5563 Mkosana Township, Victoria Falls.

2. The respondents are ordered to surrender the control and use of the Temple at No.5563 Mkosana Township, Victoria Falls to the applicants forthwith.

3. The respondents are barred from harassing and barring the applicants and their members from accessing and using the Temple at 5563 Mkosana Township, Victoria Falls as they deem fit.

This is a church dispute gone awry in which the respondent was elected Bishop of the applicant in an election conducted on 21 March 2015 whose process and outcome has been disputed by other members of the church who say they are the majority. They have, by resolution passed at an extraordinary general conference held on 28 March 2015, resolved inter alia:

“That the Evangelical Church of Zimbabwe declares null and void the unconstitutional elections of the Bishop of The Evangelical Church of Zimbabwe held by minority members of the Denomination at the Ministry Centre on Saturday 21 March 2015. Therefore, the church does not recognize Reverend Isaac Soda as its newly elected Bishop.”

In arriving at that resolution, those involved cited the violation of the applicant's Constitution in the process. The applicant is a universitas constituted and governed by a Constitution and therefore can only function and be run in accordance with that Constitution. It is alleged that while Article VIII C of the Constitution and church practices require the co-ordination of the election by a five member Selection Committee, the election was co-ordinated by only two members of the committee.

While ballot papers should be sent out following the approval of the Church Council, which should pass a resolution sanctioning the holding of an election, this was not done. The wives and friends of the candidates, and one of the candidates, are the ones who distributed ballot papers instead of the Church Overseers as is the procedure. In breach of Article VIII C(1)d) of the Constitution, the Selection Committee did not consult the Pastors' Council on the suitability of election candidates.

In breach of Article VIII C (1)(g), the Selection Committee shortlisted only two candidates for the position of Bishop instead of three (3) and disqualified the third candidate. The final nomination forms were not issued in accordance with the Constitution which requires that they be issued within the period of 30 days preceding the Annual General Conference. One of the two candidates was not qualified as he is not a holder of a first Theological degree as required by Article VIII A(v) of the Constitution. The two Selection Committee members intimidated voters by threatening unspecified legal action if they did not proceed with the election.

The applicant states that the respondent appeared to recognize the power of the majority members to nullify the election results when he approached this court by court application filed on 29 April 2015, in HC3889/15, in which he seeks the following order;

“IT IS HEREBY ORDERED THAT

1. The election process for the election of the Bishop of the 1^st respondent be and is hereby upheld and confirmed.

2. Applicant be and is hereby declared the Bishop of the 1^st respondent for the next 5 years.

3. 2^nd – 6^th respondents be and are hereby interdicted from interfering with the business of 1^st respondent.

4. Respondents to pay costs of suit.”

In that application, the respondent cited the present applicant as the first respondent and five other people, the secretary of the Church Council, the current Bishop, the treasurer and the chairpersons of the Constitutional Committee and the National Women Fellowship. It would appear, however, that the respondent may have grown impatient while waiting for the rusty old train of this court to deliver justice to him because the applicant complains that before the determination of his application for a declaratur the respondent caused notice to be sent out through his supporters on 3 May 2015 announcing his intended inauguration on 9 May 2015 at 10am at the applicant's head office.

It should be noted, however, that 9 May 2015 was set as the date of the inauguration at a meeting of the Church Council held on 1 April 2015 which was chaired by the Vice Bishop Reverend A Mateva. If a notice was sent out on 3 May 2015, as alleged by the applicant, and triggered the filing of this application, it was in fulfillment of a resolution which was already in place. Be that as it may, the applicant says it is the announcement made on 3 May 2015, which the respondent denies making, which prompted it to make this urgent application seeking to interdict the respondent from staging the inauguration. The full text of the relief that the applicant seeks is in the following:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The election held on 20-21 March 2015 for the contesting of the position of Bishop of the applicant be and is hereby declared null and void and of no force or effect.

2. Respondent be and is hereby declared as not being duly elected Bishop of the applicant in the elections held on 20-21 March 2015.

3. The respondent to pay costs of this application on an attorney and client scale only if he opposes it.

INTERIM RELIEF GRANTED

That pending determination of this matter, the applicant is granted the following relief:

1. The inauguration of the respondent as the applicant's Bishop on 9^th May 2015 at applicant's head office be and is hereby stopped from taking place.

2. The respondent be and is hereby ordered not to interfere in any unlawful manner in the operations and business of the applicant.

3. The respondent be and is hereby ordered not to use (his) supporters to interfere in any unlawful manner in the operations and business of the applicant.”

It is the interim relief that the applicant seeks which is the concern of the present inquiry.

However, the respondent has taken essentially two points in limine, namely, that the deponent of the founding affidavit, David Chiveso, does not have locus standi in judicio to represent the applicant in any legal action, and, as such, is ill-suited and that the matter is not urgent; it being self-created urgency which should not be entertained at all.

After hearing arguments in this matter, I granted an order confirming the provisional order issued by this court on 17 February 2015 and said the reasons for doing so would follow. These are they.

The first applicant is a common law universitas constituted in terms of a Constitution for the purpose, inter alia, of fellowship among its members. The second applicant is its Overseer. The first respondent was, at the material time, the appointed co-ordinator of the first applicant who was acting on its behalf when the first applicant made an application to the second respondent, the local authority owning vacant land, for a vacant Stand for purposes of constructing a church.

Apparently the church did not have premises of its own, did not have an address, and used the first respondent's residential address, being Z29 Mzilikazi Township, Bulawayo as its address.

The spirit that filled the first applicant church to take the initiative in the furtherance of its objectives is commendable indeed and the local authority must be congratulated for responding swiftly to the clarion call, so to speak. By letter dated 1 September 2014, the local authority acceded to the application and allocated the first applicant Stand 18732 Thorngrove, Bulawayo as a church Stand on certain terms and conditions set out therein. The first applicant accepted the offer by paying the requisite $115= for preparation of the lease agreement and facilitated the flighting of a newspaper advertisement of the proposed lease of the Stand in the local newspaper.

It is then that greed and the pursuit of self-interest set in and got the better of the first respondent, the co-ordinator of the applicant. When the lease agreement was generated by the second respondent, she intercepted it, and, purporting to now represent another church, Zambuko Apostolic Faith, whose head office is her residential address, No. Z29 Mzilikazi, Bulawayo and has one of its objectives, the object to bury the dead, the first respondent wrote a letter to the second respondent which reads:

“REF: ER 8-301

Please may the Bulawayo City Council be advised that in connection with the church Stand application, Ref ER 8-301, only the undermentioned first three individuals are responsible for the Stand application and payment between the church and the City of Bulawayo and that the City of Bulawayo should not tolerate any other individuals as they emanate from Harare. Please check in your files that through the Co-ordinator, Eunice Mlauzi, made (sic) the Stand application for their congregants as you the City of Bulawayo have rightfully responded to the Stand application using the proper address of communication.”

The letter is signed by the first respondent and two other individuals and represents the highest level of turpitude and indeed falsehood especially as it is the first applicant which made the application and paid the lease agreement fee. The first respondent gleefully latched onto the use of her address in the application and the fact that as the then Co-ordinator of the first applicant it is herself who had submitted the application in an effort to sustain her weird argument that the Stand was allocated to herself or her new church. That way she signed the lease agreement with the municipality on 24 November 2014 along with her two lackeys purporting to represent “Zambuko Apostolic Church” when her new organization has been christened “Zambuko Apostolic Faith.”

When the applicants discovered the scheme, they launched an urgent application and obtained from this court a provisional order interdicting the first respondent from purporting to act on their behalf and directing her to surrender the original agreement with the second respondent.

It is the confirmation of that provisional order which is opposed by the first respondent.

In her opposing affidavit, the first respondent states that she now leads “a splinter Zimbabwe Apostolic Church.” While admitting that she was indeed the Co-ordinator of the first applicant, she maintains that owing to differences “we split and went away on (sic) with other members of the Zambuko Apostolic Faith Church.” The first respondent denies any fraudulent misrepresentation or any unlawful conduct on her part. To her, the first applicant should apply for another Stand as the one in dispute belongs to her and her faction.

This matter resolves itself on the basis of those facts which are either common cause or cannot possibly be disputed. They are that the application for allocation of a church Stand was made by the fist applicant. It being an association it could only do so through its officers, in this case the Co-ordinator, who authored the application letter on its behalf. The second respondent allocated the Stand to the first applicant and accepted its payment for the lease agreement. It did not allocate it to the first respondent or her splinter church. In fact, when she wrote the letter I have cited above, the first respondent was engaging in an exercise in self-aggrandisement; sacrificing the common good in favour of personal gain. In that ill-fated misadventure she misled the second respondent into believing that she was the applicant or that she still represented the applicant for land.

Even if indeed there has been a split which has resulted in the first respondent going away to form another church that cannot help her at all. The first respondent and her fellow congregants, who may be only three in number, have left the first applicant church- by their own admission. Therefore, a secession has occurred, and, as such, the first respondent cannot lay a claim on the property of the original church.

That is a point that has already been authoritatively settled by the Supreme Court in The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare 2012 (2) ZLR 392 (S)…, where MALABA DCJ remarked:

“The principle is that, in the absence of express provision in the Constitution of a voluntary association, such as a church, property held in trust must be applied for the benefit of those who adhere to the fundamental principles of the association. Related to this is the principle that a member of a voluntary association who leaves the organization whilst others remain must leave the property with those who have not resigned membership. When one leaves a club one does not take its property with him or her. It has long been established as a salutary principle of law in this area of property ownership that when one or more people secede from an existing church they have no right to claim church property - even if those who remain members of the congregation are in the minority.” See also Guta Ramwari v Waduka and Others HH470-14.

In my view the matter is resolved.

The first respondent and her group having left the first applicant church, they cannot claim the Stand which was allocated to the original church. It matters not that the first respondent participated in securing the Stand. She did so for the church in her capacity as its Co-ordinator. It was not in her personal capacity….,.

In the result, it is ordered that:

1. The provisional order issued on 17 February 2015 is hereby confirmed.

2. It be and is hereby declared that the lease agreement concluded by first and second respondents is null and void.

3. The second respondent is hereby directed to conclude a lease agreement with the first applicant for Stand 18732 Thorngrove, Bulawayo within 24 hours of the granting of this order.

4. The costs of this application shall be borne by the first respondent on the scale of legal practitioner and client.

When matters religious end up in court with congregants at each other's throats you know something is badly wrong; for, as someone once said, religion is the opium of man.

In this church dispute, the parties are fighting over the control of a church building situated at Stand 8583 Glen Norah Township, Harare (“the church”) which is held by the applicant under Deed of Transfer Number 6411/2006; it having been transferred on 6 September 2006 from the City of Harare.

The applicant is a voluntary church organisation governed by a Constitution which has its headquarters at Number 56008 Old Lobengula, Bulawayo and has other branches around the country including the Glen Norah Church. It is led by a Supreme Council at an international level and a National Council at a national level in terms of Art 12 of its Constitution. There are other subordinate councils within its structure. The applicant follows the teachings of its founder, one Taxwell Tayali. It is the applicant, through its structures, that has been operating from the church. However, differences of opinion manifested themselves quite a long time ago as a faction emerged propagating different beliefs and styles of worship. As tensions mounted, a reciprocal peace order was granted by the Magistrates Court in Harare on 19 August 2008 in terms of which the feuding parties were to keep peace; with one group worshipping at the church in the morning between the hours of 7am and 12 noon. The other group was to worship in the afternoon between the hours of 1pm and 5pm.

As with anything human, the peace order lapsed and was not renewed.

That is not all, the group of members constituted by the three (3) respondents and others decided to draw up, and register, another Constitution on 3 January 2014 departing significantly from the dogma and other teachings of the applicant's founder, Taxwell Tayali, but still maintaining the name Guta RaMwari. It is led by an Administrative Council. It has its headquarters in Tshabalala, Bulawayo - having moved from the applicant's Lobengula headquarters. The teachings of the applicant church are captured in the preamble to the 6th Amendment of the Constitution which reads in part:-

“Whenever God the Almighty declares His presence on earth this declaration afflicts many conceited people who claim to know when, where and how God should reveal Himself to man; 'I HAVE COME, I AM GOD THE CREATOR.' This declaration was made on January 31, 1961 through an ordinary man, Taxwell Tayali, while Mrs Laizah Tayali was praying. He was assaulted and rejected by some of the Guta RaMwari members after this divine pronouncement, but God the Almighty chose twelve families and gave them the Holy Spirit. Those twelve stood firmly against the rest who had rejected the divine relevation. At His own time, God led the twelve out and away from all those who had rejected Him and established Guta RaMwari at Mpopoma South in Bulawayo, Zimbabwe on July 22, 1962…, Whereas a simple man cannot claim to be God of all nations and whereas he cannot perform miracles unless God is with him, there, therefore cannot be any demonstration of significant works and accurate forecasting of events which are miraculous to mankind except if God is in that particular person.”

The teachings of the church whose Constitution was registered on 3 January 2014, to which the three (3) respondents are members, are contained in its preamble which reads in part:-

“Whereas God the Creator has appeared in the past to man in different countries and different places and in different ways, and whereas he has done all this at his own will, it has now pleased God to reveal himself to the people in Guta RaMwari all over the world. Guta RaMwari is a religious organisation established by God for curing illness and troubles as well as preaching his Word pronounced as Standing Orders contained in the Holy Literature.

DEDICATION PREFACE

We, the members of Guta RaMwari;

(a) Being the product of God's Promise, testify that Guta RaMwari was founded by God in 1954 in Zimbabwe, Africa.

(b) Testify to the existence of God the Holy Spirit in our midst and commune, worship him directly.

(c) Believe God's declared purpose of revealing Himself was to free humanity from physical and spiritual afflictions.

(d) Believe and testify that God is the Holy Spirit.

(e) Testify that, as Congregants, we are equal before God and no individual has oversight powers in Guta RaMwari.

(f) Affirm to do our best to follow the Guta RaMwari standing orders and all the Holy Statutes faithfully and religiously.

(g) Accept that the decision-making powers, authority and control shall vest in Guta RaMwari whose interest shall be represented by the Administrative Council, International.

(h) Accept to be bound by the resolutions adopted by the leadership of Guta RaMwari in a properly constituted meeting.”…,.

Clearly, there has been a departure from the belief that God expresses himself through the chosen one, originally Taxwell Tayali, and the chosen 12 families given the Holy Spirit, and other related beliefs, as the new church now sharply rejects those beliefs electing instead to worship God “directly” as equals with no individual having “oversight powers.” A schism has therefore occurred with the respondents and their kind standing for different teachings. More importantly, those that have altered their religious outlook, like the three (3) respondents have remained firmly at the church resulting in simmering discontent and conflict.

The applicant has come to court complaining that the respondents, after voluntarily terminating their membership and allegiance to the applicant, have resorted to causing chaos at the church. While their colleagues in Bulawayo moved away and set up their own church in Tshabalala, the respondents have forced themselves on the Glen Norah branch. The applicant complains, bitterly, that on 10 August 2014 the respondents attended the applicant's church service. While Senior Evangelist Fabian Jacha was announcing the church roster, the first respondent interrupted him rejecting the roster. He then instructed the third respondent to prepare another roaster subscribing to the doctrine of the breakaway church based in Tshabalala, Bulawayo. The respondents allegedly threatened violence against those who disagreed with them. A week later, on 17 August 2014, the third respondent announced their own roster forcibly as he had not been accorded the floor being an outsider at the church. He also threatened to announce a new chairman for the applicant's church on 24 August 2014. This forced the applicant to file this urgent application on 22 August 2014 seeking the following relief:-

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1. The interim relief sought is confirmed as final pending finalisation of the Applicant's court action under case number HC5646/14.

2. The respondents shall pay the costs of suit.

INTERIM RELIEF GRANTED

Pending the determination of this application, the applicant is hereby granted the following relief:

1. The respondents, their agents or assignees be and are hereby ordered forthwith to desist from any action intended to disrupt the peaceful conduct of church services by the applicant church by threat or words or in any manner whatsoever resulting in the applicant's church services being unlawfully interfered with at its Glen Norah branch, Harare located on Stand No.8583 Glen Norah, Harare pending the return date of this matter.

2. The respondents, their agents or assignees be and are hereby barred from interfering in any manner whatsoever with applicant's duty roaster pertaining to the conduct of its church services at Stand No.8583 Glen Norah, Harare pending the return date of the matter.

3. Any duly attested member of the Zimbabwe Republic Police is authorised to enforce para 1 and 2 above to maintain peace and order using any such appropriate means as (are) permitted by law.”

The application has been opposed by the three (3) respondents who, although not denying being members of the church called Guta RaMwari governed by a Constitution registered on 3 January 2014, claim an entitlement to the church building arguing that it is in fact owned by the new church. As to how this would be so when the property was acquired and transferred on 6 September 2006, before the new church was established, we are not told. The respondents also do not dispute that they belong to the same church which left the applicant's headquarters in Lobengula, Bulawayo to set up base in Tshabalala Bulawayo. It is not clear why the same could not be done in Harare. What is, however, clear, even by the respondents' own admission, is that there is chaos at the church, caused by differences in religious beliefs, of people trying to worship together from the same building at the same time. The second respondent states, at paragraph 11 of his opposing affidavit, which is verified by the first and third respondents, that:

“There are alternative remedies in this matter, the applicant can sue the respondents for damages (what logic!) and can get them arrested and/or just wait for the outcome of the pending cases in Harare and Bulawayo which cases shall determine the real issue between us, i.e. ownership of the right to the name Guta RaMwari. The parties are praying together currently owing to the applicant's having imposed themselves on our membership worshipping time.”…,.

It is that kind of chaos and confusion which cannot be allowed to perpetuate in any civilised society.

It is not possible for two (2) different religious groups, advancing varying religious teachings, to “pray together.” That would be a recipe for disaster and a dangerous state of affairs. The situation on the ground is not only hostile and unstable indeed - it cries out for intervention….,.

In essence, what the applicant seeks is a temporary interdict.

In Ericksen Motors (Welkon) Ltd v Proten Motors, Warrenton and Anor 1973 (3) SA 685 (A)…, (quoted with approval by SANDURA JA in Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors 2000 (1) ZLR 85 (S)…,.) HOLMES JA stated the requirements for a temporary interdict as:-

“The granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the court. Where the right which it is sought to protect is not clear, the court's approach in the matter of an interim interdict was lucidly laid down by INNES JA in Setlogolo v Setlogelo 1914 AD 221 at p 227. In general, the requisites are:

(a) A right which, though prima facie established, is open to some doubt;

(b) A well-grounded apprehension of irreparable injury;

(c) The absence of ordinary remedy.

In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant if the interdict is withheld, against the prejudice to the respondents if it is granted. This is sometimes called the balance of convenience. The foregoing considerations are not individually decisive, but are inter-related; for example, the stronger the applicant's prospects of success the less the need to rely on prejudice to himself. Conversely, the more the element of 'some doubt,' the greater the need for the other factors to favour him…,. Viewed in that light, the reference to a right which, 'though prima facie established is open to some doubt', is apt, flexible and practical, and needs no further elaboration.”

I have already stated that the papers before me suggest that the respondents belong to a group that has abandoned the teachings of the applicant and registered a new Constitution governing its religious teachings; it is an organisation that came into place only in January 2014 - long after the church being fought over was acquired. Prima facie, the applicant has a right over the church.

The evidence before me suggests that the respondents are causing a commotion at the church, expounding certain alien teachings and disrupting the smooth running of church services. Therefore, there is a well-grounded apprehension of irreparable harm for, apart from the danger of polluting the applicant's congregants, there is interference with their Constitutional right of worship. There can be no other remedy available to the applicant than the interdict sought….,.

I am of the view that the balance of convenience also favours the applicant. The respondents' fellow congregants have left the applicant's institutions intact to set up on their own. Having abandoned the applicant's teachings, it is convenient for the respondents' to follow suit instead of trying to transform the applicant. I am also mindful of the fact that the Supreme Court has ruled, in the case of The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare SC48-12…, that where a schism has occurred, the party leaving the church cannot lay a claim to the property of the church. At page 36 of the cyclostyled judgment, MALABA DCJ stated:-

“The principle is that in the absence of express provision in the Constitution of a voluntary association, such as a church, property held in trust must be applied for the benefit of those who adhere to the fundamental principles of the association. Related to this is the principle that a member of a voluntary association who leaves the organisation whilst others remain must leave the property with those who have not resigned membership. When one leaves a club one does not take its property with him or her. It has long been established as a salutary principle of law in this area of property ownership that when one or more people secede from an existing church they have no right to claim church property - even if those who remain members of the congregation are in the minority.”

Indeed, where a number of people group together to establish a Christian church for purposes of promoting certain defined doctrines of religious faith, the property which the church acquires is impressed with a trust to carry out the purpose and a majority of the congregation, such as the respondents who claim to belong to the majority of members of Guta RaMwari, cannot divert the property to uses inconsistent with such defined religious doctrines against the will of a minority of the congregation: Chong v Lee (1981) BCLR 13…,.

I am therefore satisfied that the applicant has made out a case for the relief sought. Accordingly, I grant the provisional order in terms of the draft.

This is an appeal against the whole judgment of the High Court of Zimbabwe dated 20 May 2015.

The order sought to be impugned reads as follows:

“IT IS DECLARED THAT,

1. 1^st, 2^nd, 3^rd and 4^th Respondents are no longer members of Applicant and have lost all rights to fellowship under applicant or to make use of any of its properties or amenities as well as its name.

2. 1^st, 2^nd, 3^rdand 4th respondents shall immediately stop and shall at all times desist from making use of applicant's name or any such name which may reasonably be confused with applicant's name and which may give the impression that they have any association with applicant.

3. 1^st, 2^nd, 3^rd and 4^th respondents shall immediately relinquish possession and use of all of applicant's properties both movable and immovable whether held by them directly or by those claiming the right of any use of occupation through them and which are set out in paragraph “3.1” below and shall concede such use and possession to applicant.

1. LAND AND BUILDINGS

1. Bulawayo: church at Stand 61000, Size Road, and adjacent Stands for youth and women, Western Commonage No.6 Pelandaba;

2. Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;

3. House at No.16 Amantje Road, Four Winds, Bulawayo;

4. Greengables Farm, the remaining extent of subsdivision B of Dunstaal, Khami;

5. Plot 11 and 12, Shamrock Road, Gweru;

6. Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;

7. Kwekwe: Stand No.383 Mbizo Township Church and residence, Amaveni Township Church;

8. Kadoma: Stand No.4 Bwanali Street, Rimuka Township Church and Mission residence;

9. Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;

10. Masvingo Stand; 14 Mucheke Township, Masvingo;

11. Mutare: Stand No.7 Machekaire Street, Dangamvura Township, Mutare;

12. Buhera: Murambinda Township Church Stand;

13. Nyanga: Church at Bonde Kraal;

14. Mount Selinda: Chako Township Church Stand;

15. Chinhoyi: Stand 1159 Hunyani Township Church and residence;

16. Mahororo Business Centre Church, Hurungwe;

17. Beitbridge: Stand 2384 Dulibadzimu and residence at No 9;

18. Victoria Falls: Stand 2647 Victoria Falls;

19. Kariba: Stand 1727 Nyamhunga Township;

20. Chiredzi: 51 Makaza, Triangle, No.6 Nzimbe Township, Triangle;

21. Mwenezi: Sarahuru Township Church;

22. Mutoko: Mutoko Business Centre Church Stand;

23. Pilgrims' Progress Restaurant, Kadoma;

24. Pilgrims' Progress Restaurant, Gweru;

25. Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan Mine;

26. All motor vehicles and church assets under their control;

27. Chipinda Church Stand; and

28. Hwange: No.2 Glencoe Road, Railton, Hwange.

4. 1^st, 2^nd, 3^rd and 4^thRespondents are to bear the costs of this application.”

The background to this matter is clearly set out in the judgment of the court a quo and may be summarized as follows:

The Apostolic Faith Mission of Portland, Oregon, is a church corporation of the State of Oregon, USA; which church was established in 1906 with its headquarters in Portland, Oregon, and is hereinafter referred to as the “mother or parent church”. It is headed by a Superintendent General. One of the mother/parent church's premier goals is to disseminate biblical truth and evangelise the world. In advancing this goal, the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) was established in 1955 (hereinafter referred to as the “local church”).

The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) (the “local church”) is the respondent in casu.

The mother church has other branches in a plethora of Southern Africa countries, inter alia, South Africa, Malawi and Angola. The local church is governed by a Constitution like any of the other branches of the mother church in Southern Africa. The first Constitution of the respondent was promulgated in 1968 and then amended in 1985 and 1996. In terms of Article 1 of the respondent's amended Constitution, the respondent was established as a branch of the mother/parent church. The appellants sought to further amend the Constitution in 2012 which purported amendment, however, was not endorsed by the mother church. The first appellant was appointed Overseer of the respondent in 1985. It was during the stewardship of the first appellant that an issue arose concerning the existence of two choirs in the respondent's church.

The pith of the dispute related to whether there was need for the choir to wear a uniform and dress in a particular manner.

The mother church was informed of the dispute and it directed that both choirs be disbanded. The first appellant did not act in accordance with this direction from the mother church. Rather, the first appellant wrote to the mother church indicating that he would consider withdrawing from the Board and from being an Overseer if the issue of uniforms was not dealt with to his satisfaction.

The Director responsible for Africa, one Reverend Baltzell, visited the respondent with the intention of retiring the first appellant and appointing a replacement. Alive to this fact, the first appellant instituted legal action. Subsequently, Darrel D. Lee, the Superintendent General, wrote to the first appellant communicating his removal from the position of Southern Africa Overseer with effect from 21 April 2005, leaving him as an ordinary member of the church.

Aggrieved by his removal, the first appellant instituted legal action which saw him obtaining a provisional order in terms of which he would remain Overseer of the respondent. This provisional order was, however, subsequently discharged. The first appellant appealed against this judgment. The appeal, however, lapsed and was deemed dismissed. On 7 February 2008, following an application made by the first appellant, the respondent's removal was invalidated, unopposed, under case HC/1170/05 and the subsequent application for rescission was dismissed.

The application a quo was, however, not premised on the previous removal of the first appellant. The material events that led to the appealed judgment are set out hereunder, as outlined a quo:

“In November 2011, the Head of the parent church visited the country and the (first appellant) barred him from accessing the church branches and buildings for conducting services. This matter spilled into the courts again with the parties subsequently agreeing to resolve their differences outside the court. In the same month, the first (appellant) issued summons for the eviction of pastors he did not agree with from church premises. He appointed new pastors and replaced those he perceived to be siding with the parent church. This development culminated in further tensions in the church. On 25 January 2012, the first (appellant) was suspended from membership of the church by the parent church. The reason for this was that he had breached the cannons of the church and violated spiritual doctrines by continuing to litigate against the faithful and that he had failed to submit to the authority of the church in breach of the church's Constitution. Further, that his conduct had led to the creation of disharmony within the church and that he had appropriated the church's assets to his own use. The other complaint was that he was effecting amendments to the Constitution without authority.”

The letter of 25 January 2012 suspended the first appellant “immediately from all activities associated with the church” and stated further that “during the suspension and pending the finalization of investigations and any subsequent disciplinary hearing that might be conducted against you, you shall not set your feet (sic) at any of the church's premises. You shall also not conduct any church service. You shall also be expected not to interfere with church members wherever located in Southern Africa..,.”

Against these charges, the first appellant instructed his legal practitioners to write to the Head of the parent church. The contents of this letter, dated 3 February 2012, read as follows:

“Dear Sir

RE APOSTOLIC FAITH MISSION OF PORTLAND AND OREGON UNITED STATES OF AMERICA VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF TRUSTEES – CONSTITUTIONAL AMENDMENT

We refer to the above matter and advise as you may well know that we are lawyers for the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc. and the Board of Trustees of same, and, of course, Reverend Sibanda, the Overseer of the Southern African Headquarters;

1. The Southern African Headquarters is a legal person governed by its own Constitution and we advise that the Constitution was formed by the Board of Directors of Southern Africa duly convened and called for that purpose.

2. The same Constitution is subject to amendment by the same Board of Directors duly convened for that particular purpose.

3. The historical relationship between Southern Africa and America was born out of historical issues of the refusal by the Colonial Government to accord indigenous people the right to preach the Gospel without external white missionaries. For the record, America and Southern Africa have a spiritual relationship; a look at the previous Constitutions and your reference to the history of the church in Southern Africa will vindicate this position.

4. In our view, a look at the amendments is not only reasonable but logical and was inevitable and on p8 are the proposed trustees chosen by the people of Southern Africa. The choice is yours, to either understand the amendments and try to build on a great relationship with Southern Africa under an affiliate status or choose to listen to people who appear to be feeding you with false information. For your information, the whole Board of Directors and the Board of Elders and the Brothers and Sisters in the faith in the greater Southern Africa are prepared to proceed with the amendments of the Constitution.

5. For the record, our clients collectively have decided that they will not accept the leadership from America. The Board of Directors, Elders and Church members have enough sense and intelligence to choose their own leadership. Finally, the same God you serve is the same God they serve and He will give them guidance on succession issues.

May we have your response, if any, within seven days?”

The episodes that followed after this letter are that the first appellant was called to a disciplinary hearing to respond to the charges preferred against him. The charges were, inter alia, that the first appellant had violated Articles VI and VII of the respondent's Constitution by deliberately refusing to submit to the authority of the parent/mother church and that the first appellant had violated the Constitution as read with doctrinal rules of the Apostolic Faith Church of Portland, Oregon (Southern Africa Headquarters) in that in or around December 2011, the first appellant had elected to settle his personal disputes with church brethren in the High Court of Zimbabwe rather than as dictated by the Bible.

The first appellant did not attend the disciplinary hearing to determine charges laid against him set for 22 March 2012. The hearing nevertheless went ahead and it was resolved that the first appellant's suspension be “confirmed”. Rev. Onias Z. Gumbo was then appointed as Overseer in the place of the first appellant.

Undeterred by the suspension, the first appellant maintains that he is still the Overseer of the respondent.

On 22 March 2014, the appellants issued summons against the superintendent of the parent church challenging the first appellant's suspension and seeking nullification of Reverend Gumbo's appointment and an order interdicting him from interfering with the church operations. The parent church counter-claimed seeking a declaration of the lawfulness of the suspension and the interdiction of the appellants from acting as Overseer and Board of Directors of the local church. This action does not seem to have been pursued to finality for reasons that are not clear from the record. Instead, the respondent filed an application for a declaratory order in the court a quo essentially seeking the same relief as in the counterclaim. The terms of the order prayed for, which order was granted by the court a quo, have already been quoted above.

Aggrieved by that order, the appellants noted this appeal on the following grounds of appeal:

“1. The High Court erred in finding that the respondent, being a universitas with power to sue and be sued in its own name, could not secede from the Apostolic Faith Mission of Portland Oregon.

2. The High Court further erred in finding that the respondent had an interest in suing its Overseer and its Board of Trustees, the Appellants, when the letter of the 3^rd of February 2012 was written on behalf of the respondent, its leadership and its members.

3. The High Court further misdirected itself in finding that the letter of the 3^rd of February 2012 amounted to a resignation by the (appellants) from the (respondent) or a denunciation of the doctrine of the church.

4. The High Court misdirected itself in finding that the (appellants) had shown conduct as to amount to sensation (sic) (secession?) when there was no evidence to that effect.

5. The High Court misdirected itself in finding, as it did, that the (appellants) had adopted a new Constitution for the applicant when in fact they had not proceeded with the proposed amendments.

6. The High Court further erred in failing to find that the (respondent) church, through the Overseer, the 1^st (appellant), had the authority to appoint its own leadership, that is the Board of Trustees, and, therefore, the communication that the applicant's leadership would be appointed locally could not amount to denunciation of the American church.”

At the hearing of this matter, additional grounds of appeal were moved and granted through an amendment as follows:

1. The learned judge in the court a quo erred in not finding that the respondent did not have the requisite capacity to bring the action in this matter and/or that it required the support of the church in Oregon, USA.

2. The learned judge in the court a quo erred in not finding that the application was, in any event, fatally defective as the deponent to the founding papers was barred from representing the respondent.

3. The learned judge of the court a quo erred in finding that the first appellant ceased to be District Superintendent and ought to have found, therefore, that the application was a nullity.

The appellants then prayed for the setting aside of the judgment of the High Court and its substitution with an order dismissing the declaratory application with costs….,.

This Court, therefore, is seized with an appeal seeking to overturn a declaratory order granted a quo. From a close reading of the grounds of appeal, two questions call for determination and these are:

1. Whether the respondent had the requisite locus standi to sue?

2. Whether the appellants had ceased to be members of the respondent?...,.

Whether the appellants had ceased to be members of the respondent?

The appellants contend that the letter of 3 February 2012, written by their legal practitioners to the mother church, did not communicate their resignation from the mother church. Against this contention is a specific finding made by the court a quo that the first appellant had resigned from the respondent's church. The contents of the letter have been quoted above.

It must be noted that the letter was written on 3 February 2012, days after the suspension of the first appellant from the respondent's church. The first appellant had been suspended from the respondent's church on 25 January 2012. The terms of the suspension were, inter alia, that the first appellant was suspended immediately from all activities associated with the respondent church. It therefore follows that any activity that the first appellant purportedly did on behalf of the church, after his suspension, was null and void. As long as the suspension was still in force, any purported act by the first appellant, on behalf of the respondent, was of no effect.

The letter in question was written by the law firm, Cheda and Partners, on the instructions of the first appellant who had been suspended from the respondent church. The author of the letter, at law, is undoubtedly the first appellant. It is worth observing that the legal practitioners who wrote the letter in question state that they are lawyers for the respondent, the first appellant and the Board of Trustees of the respondent. In this letter, the first appellant sought to act on behalf of the respondent as noted from the cited parties. The contents of the letter therefore, prima facie, reflects that the first appellant was representing the respondent. This could not be possible as the first appellant had been suspended by the respondent.

Be that as it may, the pertinent question that this Court is seized with is whether the letter communicates a resignation by the appellants from the respondent' church. In the event that this Court is to find that it communicates a resignation, does it then follow that the appellants are no longer members of the respondent despite the absence of dismissal of the appellants by the respondent?

It is also worth noting the letter in question contains very strong doctrinal issues. Is it a form of schism, a declaration of independence from the parent church?

In the case of Independent African Church v Maheya 1998 (1) ZLR 552 (H), DEVITTIE J reflects on the historical schisms generated by the passion of church conflicts, thus:

“Even at birth, the Christian Church experienced a great schism…,. It came about when a convert of the early church, Paul, adapted Christianity to meet the needs of all mankind and freed it from the local and national parameters…,.

Another schism which took place in early times was the Reformation. The growth of national consciousness in medieval times, in part, motivated the great conflict the Catholic Church and Protestantism. The spirit of nationalism could not accommodate the claims of the papacy, a non-national authority, to moral dictatorship. This schism has raged for centuries and continues to this day..,.

In like vein, the spirit of freedom radiated by the advent of democratic Government in Zimbabwe in 1980 precipitated a rapid growth of independent churches in Zimbabwe. I use the word 'independent' to denote churches with no association or affiliation to the established churches.”...,.

However, before the ink was dry on the above judgment, the schism had spread to local branches of established churches and the relationship between the parent churches and their local branches is currently undergoing serious strains as the present case clearly demonstrates. The relationship between the metropole-based parent churches and their peripheral local branches, that was forged under brutal colonial conquest and tenuously survived the bitter struggles of independence, must now respond to the democratic dispensation demands and not wish away the tensions as mere ruses of charlatans and greedy leaders of the poor peripheral congregations.

But how are the church property disputes to be resolved?

The Independent African Church v Maheya 1998 (1) ZLR 552 (H) case provides some useful indications. Quoting several USA Supreme court cases, the learned judge in that case teases out a number of useful principles. From the case of Watson v Jones 80 US (13 Wall) 679 (1871), the following principles emerge:

“The Federal Courts are competent to enforce express terms contained in trust instruments governing the use of ownership of property. However, courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property.”...,.

In the case of Presbyterian Church in the United States v Mary Elizabeth Hulle Memorial Presbyterian Church 393 US 440 (1969), the Supreme Court held:

“..., there are neutral principles of law, developed for use in all property disputes, which can be applied without 'establishing' churches to which property is awarded. But First Amendment values are plainly jeopardised when church property litigation is made to turn on the resolution, by civil courts, of controversies over religious doctrine and practice.”...,.

In Jones v Woolf 443 US 595 (1979), the “neutral principles” approach was supported by the Supreme Court, thus:

“This method relies, exclusively, on objective, well established concepts of trust and property law and formulae familiar to lawyers and judges. It thereby promises to free civil courts completely from the entanglement of religious doctrine, policy and practice.”

Thus, the principles developed in the USA for resolution of church property disputes which may be applied with much benefit in our jurisdiction may be summarized as follows:

1. Civil Courts will enforce express terms governing the use and ownership of property contained in church documents, such as Constitutions, trust instruments, canons, etc.

2. Civil Courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property.

3. Civil Courts may apply neutral principles of law, which are objective, well-established concepts of trust and property law and formulae familiar to lawyers and judges; and avoid entanglement in religious doctrinal issues, policy and practice whether pertaining to the ritual of liturgy of worship or the tenets of faith.

Applying the above principles to the facts of this matter:

(a) In resolving church property disputes, it is improper to get entangled in the doctrinal issues as the court a quo, in my view, unfortunately, did.

The question of choir uniforms and how they are to be worn, whether the appellants exhibited behaviour amounting to schism or denounced the founding principles of the respondent or their propensity to seek legal redress in disputes with congregants contrary to Biblical teachings are all doctrinal issues that cannot be the bases of resolving the property dispute. The exceptional circumstances in the case of Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48-12 (hereinafter the “CPCA case”) are distinguishable from the current one.

In Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48/12..., people who had been members of the Board of Trustees for the church but withdrew their membership from the church and formed a new church organization were held to have resigned from their offices thereby losing the right to control the original church's property such as buildings, houses, schools, motor vehicles and funds in banks. In this regard, MALABA JA..., had this to say in Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48-12:

“The court does not discuss the truth or reasonableness of any of the doctrines of the religious group. It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures. While the court does not take notice of religious opinions, with a view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the church and should possess and control church property.”

(b) This Court accepts as a correct statement of law made in Independent African Church v Maheya 1998 (1) ZLR 552 (H)..., and relied upon in Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48-12..., that disputes over ownership or possession and control of church property should be resolved, in the first instance, on the basis of the interpretation and application of the law of voluntary associations.

Therefore, the Constitution of a voluntary association and rules governing it can be relied upon in solving property disputes. This is in line with the first principle noted above that civil courts will enforce express terms governing the use and ownership of property contained in church documents, such as Constitutions, trust instruments, canons, etc.

(c) Finally, the court may have resort to neutral principles of law, which are objective, well-established concepts of trust and property law.

In the present case, the question to answer is whether the first appellant, having been suspended from the respondent, and while that suspension subsists, can retain control of the property and assets of the respondent?

This issue can be resolved without the court entangling itself in doctrinal issues of whether questioning the relationship between the parent and local churches, the way the first appellant did, amounts to secession or schism or at what stage suggesting Constitutional arrangements becomes rebellion against fundamental tenets of the faith and ceases to be a normal, albeit vigorous, democratic discourse?

When can a church member be held to have so denounced the fundamental principles that lie at the heart of a church that he or she divests himself or herself from being a member of the respective church and becomes dis-entitled from access to its properties?

The best answer is that it is a matter of opinion, a matter of degree, and an issue of doctrinal intricacies that courts are ordinarily unfamiliar with. It was, therefore, a misdirection for the court below to base its decision on these doctrinal imponderables.

In Jakazi & Anor v Anglican Church of the Province of Central Africa SC10-13, this Court dealt with the issue of resignation as an objective fact. In communicating resignation, a party gives notice. The giving of notice is a unilateral act which needs no acceptance. Whether or not a party resigned is a question of fact.

The sentiments of this court in Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48-12 are instructive with regard to resignation of church members:

“Where the evidence shows that the individual exercised his/her right to terminate the relationship with the Church, the resignation takes effect immediately the conduct is committed. This is so unless there is a special provision by virtue of which it takes effect upon acceptance by the person who is given the right to receive written notice and decide whether to accept the resignation or not. The law is clear. Whether it is under Article 4 or 13 resignation is a unilateral act. Its validity does not depend upon acceptance by the person to whom it is directed. Acceptance determines when the resignation takes effect. In the final analysis, it is for the court and not the individual concerned to decide whether his conduct amounts to resignation or not.”

It must be emphasized that the ideal position is for voluntary associations to discipline their own members, either by dismissing or suspending them in terms of their set procedures.

In this case, the respondent conducted a disciplinary hearing against the first appellant for charges preferred against him. The disciplinary hearing proceeded in the absence of the first appellant despite his being properly served. At this disciplinary hearing, the decision to suspend the first appellant was “confirmed”.

It is for the church to dismiss the appellants and not for this court to do so in its stead.

The respondent is enjoined to take steps to terminate its relationship with a member who denounces its authority, and the Civil Court will give due deference to that decision in the absence of arbitrariness, bias, or unreasonableness.

What was placed before the court was, in fact, a process upholding the first appellant's suspension. Nothing shows that the appellants were dismissed, and, therefore, ceased to be members of the respondent. Suspension, cannot, by any stretch of the imagination be a method of terminating a relationship between parties. The first appellant therefore remains suspended and not dismissed from the respondent.

There is no record of the second, third and fourth appellants being charged with any misconduct let alone being suspended or dismissed from the respondent's church. There is, therefore, no basis, in my view, to declare that the second, third and fourth appellants ceased to be members of the respondent.

The court a quo erred in doing so.

All in all, therefore, there is sufficient ground to allow the appeal, with each party bearing its own costs. That part of the order of the court a quo declaring the first, second, third and fourth appellants as having ceased to be members of the respondent is not supportable, has to be set aside and replaced with an order declaring the first appellant and all those claiming through him to be barred from controlling or accessing the respondent's properties or amenities on account of the first appellant's extant suspension. All specific references to the second, third and fourth appellants in the order of the court a quo are also improper and have to be removed. Given this partial success by the appellants, it is proper that each party shall bear its own costs.

Accordingly, it is hereby ordered that:

1. The appeal is allowed with each party bearing its own costs.

2. The judgment of the High Court, in Case No. HC1451/13, be and is hereby set aside and substituted as follows:-

“IT IS DECLARED, WITH EACH PARTY BEARING ITS OWN COSTS, THAT:

(a) The 1^st respondent having been suspended on 25 January 2012 by the parent church, and while that suspension remains extant, has no right to personally, or by anyone claiming through him, make use of any of the applicant's properties or amenities as well as its name.

(b) The 1^st respondent, or anyone claiming through him, shall immediately stop and shall at all times desist from making use of applicant's name or any such name which may reasonably be confused with applicant's name and which may give the impression that they have any continuing association with applicant.

(c) The 1^st respondent, or anyone claiming through him, shall immediately relinquish possession and use of all of applicant's properties both movable and immovable whether held by them directly or by those claiming the right of use or occupation through them which are set out in 'c1' below and shall concede such use and possession to the applicant.

1. LAND AND BUILDINGS

1. Bulawayo: Church at Stand 61000, Size Road, and adjacent Stands for youth and women, Western Commonage No.6 Pelandaba;

2. Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;

3. House at No.16 Amantje Road, Four Winds, Bulawayo;

4. Greengables Farm, the remaining extent of Subsdivision B of Dunstaal, Khami;

5. Plot 11 and 12, Shamrock Road, Gweru;

6. Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;

7. Kwekwe: Stand No.383 Mbizo Township Church and residence, Amaveni Township Church;

8. Kadoma: Stand No.4 Bwanali Street, Rimuka Township Church and Mission residence;

9. Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;

10. Masvingo: Stand 14 Mucheke Township, Masvingo;

11. Mutare: Stand No.7 Machekaire Street, Dangamvura Township, Mutare;

12. Buhera: Murambinda Township Church Stand;

13. Nyanga: Church at Bonde Kraal;

14. Mount Selinda: Chako Township Church Stand;

15. Chinhoyi: Stand 1159 Hunyani Township Church and residence;

16. Mahororo Business Centre Church, Hurungwe;

17. Beitbridge: Stand 2384 Dulibadzimu and residence at No.9;

18. Victoria Falls: Stand 2647 Victoria Falls;

19. Kariba: Stand 1727 Nyamhunga Township;

20. Chiredzi: 51 Makaza Triangle, No.6 Nzimbe Township, Triangle;

21. Mwenezi: Sarahuru Township Church;

22. Mutoko: Mutoko Business Centre Church Stand;

23. Pilgrims' Progress Restaurant, Kadoma;

24. Pilgrims' Progress Restaurant, Gweru;

25. Bindura: 19/34 Musvosve Street, Stand at Chipadze Township and Trojan Mine;

26. All motor vehicles and Church assets under their control;

27. Chipinda Church Stand; and

28. Hwange: No.2 Glencoe Road, Railton, Hwange.

The battle for the control of the Apostolic Faith Mission of Portland (Southern African Headquarters) Inc. rages on. The parties have, for years, been embroiled over control of the applicant. A grim schism has occurred in the church. With no resolution in sight, the dispute has spattered into the courts.

The brief background to this dispute goes thus.

The Apostolic Faith Mission of Portland, Oregon a church corporation of the State of Oregon, USA, was established in 1906 and is headquartered in Portland, Oregon. It is headed by the Superintended General. This church organisation shall hereinafter be referred to as the Parent Church. Its main objective is to advance the word of God. In furtherance of this objective, the Apostolic Faith Mission of Portland, Oregon (Southern African Headquarters) Inc. was established in 1955. It appears that the Southern African Chapter Headquarters is located at the same premises as the church in Mpopoma, Bulawayo, and is run by the Overseer. It is a duly established Christian church organisation propounding the doctrine of Jesus Christ.

Article 7 of its Constitution provides for its governance. The government of this religious organisation is vested in the Board of Directors chaired by a District Superintendent. He is chosen by the Headquarters in Portland, Oregon. He is otherwise known as the Overseer.

It is common cause that the Southern African Chapter was, at some stage, led by the late Rev Freedom Sengwayo. The Board of Directors is nominated by the Southern Africa District Superintendent after consultation with and approval by the Superintendent General at International Headquarters in Oregon. The Parent Church has branches in several Southern African countries including Zimbabwe, South Africa, Botswana, Mozambique, Malawi, Namibia, Lesotho, Swaziland, Angola and Madagascar. The branches have their own Constitutions designating them as branches of the Parent Church. These countries fall under the Southern African Chapter.

In this application, the applicant is the Apostolic Faith Mission of Portland Oregon (Southern Africa) Inc. It will be interchangeably referred to as the applicant, Local Chapter, Southern African Chapter or Local Church. The first respondent is Reverend Richard John Sibanda. The Parent Church appointed him Overseer for the Southern African Chapter in June 1985. It appears that he is also the pastor of the local church in Bulawayo. The second to fourth respondents were joined to the application subsequent to the filing of this application. They are Board members of the Southern African Chapter and members of the local church.

The present dispute is centred on church administration, doctrine, and practice. The dispute has its genesis in the existence of two choirs in the local church brought about by differences over whether the church choir should wear a uniform and dress in a particular manner. Members of the church wrote to the Parent Church over the issue. In an attempt to address the dispute, the Parent Church directed that the choirs be disbanded and be merged into one - in the spirit of unity. This directive did not find favour with the respondents. On 5 May 2004, the first respondent wrote to the main church over this resolution. The letter read, in part, as follows:

“During our recent Board meeting with Bro Dwight Baltzell here in Zimbabwe, we warned him about the delicacy of the whole matter and the possible danger of enforcing change without harmonious and mutual agreement. He, however, indicated that as soon as he got home (USA) he would write us a letter, which would be circulated to all branch churches, informing the choir members to do away with uniforms. If that ever happens, it would cause serious unrest in people's minds and a possible split in the congregation. As the hour of rapture draws nearer and nearer I do not wish to see the work undergoing another period of perilous confusion. It would rather be better for me to withdraw from the Board and frown being Overseer of the work in this part of the world. By the grace of God we feel very strongly that the best thing to do is to handle this highly sensitive issue with great care in order to avoid any further problems, confusion, possible splits, and, worst of all, possible spiritual death among the brethren…,.”

In this letter, the first respondent expressed his intention to resign from the Board and from being Overseer if the dispute was not resolved to his liking.

The first respondent did not implement the changes as directed. It was suggested that he retire from his position. When Rev Baltzell visited, with the intention of putting in place a retirement plan, members of the church were mobilised against him and the first respondent instituted legal action.

On 25 May 2005, Darrel D Lee, the Superintendent General, dismissed the first respondent from the post of Southern African Overseer with effect from April 21, 2005. The reasons for this outcome were cited as disobedience, taking the leadership of the organisation to court contrary to biblical instructions and inciting violence at church meetings and services by the respondent. He was to remain an ordinary member of the church. He was ordered not to interfere with the conduct and management of all church affairs. He was also to vacate the church house he occupied and surrender the official church vehicles.

Following this development, the first respondent obtained provisional relief in terms of which he would remain Overseer of the applicant under HH48-05. The provisional order was discharged on 12 October 2006. On 7 February 2008, the first respondent brought yet another application similar to the one discharged. He was granted an order in terms of which his removal from office was invalidated - unopposed. An application for rescission of the order brought by the applicant was refused. That decision was appealed against and the appeal lapsed and was deemed dismissed.

The battle did not end here.

In November 2011, the Head of the church visited the country and the respondent barred him from accessing the church branches and buildings and from conducting worship services. The matter spilled into the courts again with the parties agreeing to resolve their differences outside the court. In the same month, the first respondent issued summons for eviction of pastors he did not agree with from church premises. He appointed new pastors and replaced those pastors whom he perceived to be siding with the Parent Church. This development culminated in further tension in the church.

On 25 January 2012, the first respondent was suspended from membership of the church by the Parent Church. The reason for this was that he had breached the cannons of the church and violated spiritual doctrines by continuing to litigate against the faithful and that he had failed to submit to the authority of the church in breach of the church's Constitution. Further, that his conduct had led to the creation of disharmony within the church and that he had appropriated the church's assets for his personal use. The other complaint was that he was effecting amendments to the Constitution without authority.

The respondents' response was to cause their legal practitioners to write to Rev Darrel D. Lee, the Superintendent General of the Parent church based in America on 3 February 2012. The letter was written on behalf of the first respondent, the Board of Trustees, the applicant, Board of Directors, the church elders and church members. Attached to the letter was a copy of amendments to the church Constitution. The letter written by legal practitioners for the respondents, Cheda and Partners, reads as follows;

“Dear Sir

RE APOSTOLIC FAITH MISSION OF PORTLAND OREGON UNITED STATES OF AMERICA VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF TRUSTEES – CONSTITUTIONAL AMENDMENT

We refer to the above matter and advice, as you may well know, that we are lawyers for the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc. and the Board of Trustees of same, and, of course, Reverend Sibanda, the Overseer of the Southern Africa;

1. The Southern African Headquarters is a legal person governed by its own Constitution and we advise that the Constitution was formed by the Board of Directors of Southern Africa duly convened and called for that purpose.

2. The same Constitution is subject to amendment by the same Board of Directors duly convened for that particular purpose.

3. The historical relationship between Southern Africa and America was born out of historical issues of the refusal by the Colonial Government to accord indigenous people the right to preach the Gospel without external white missionaries. For the record, America and Southern Africa have a spiritual relationship; a look at the previous Constitutions and your reference to the history of the church in Southern Africa will vindicate this position.

4. In our view, a look at the amendments is not only reasonable but logical and was inevitable; and, on p8, are the proposed trustees chosen by the people of Southern Africa. The choice is yours, to either understand the amendments and try to build on a great relationship with Southern Africa under an affiliate status or choose to listen to people who appear to be feeding you with false information. For your information, the whole Board of Directors, and the Board of Elders, and the Brothers and Sisters in the faith in the greater Southern Africa are prepared to proceed with the amendments of the Constitution.

5. For the record, our clients collectively have decided that they will not accept the leadership from America. The Board of Directors, Elders and Church members have enough sense and intelligence to choose their own leadership. Finally, the same God you serve is the same God they serve and He will give them guidance on succession issues.

May we have your response, if any, within seven days?”

No response came to this letter.

The letter reveals that it was written on the instructions of the first respondent, the newly formed Board of Trustees, Board of Directors, the applicant, elders and church members. The representation given is that it was the whole church that was steering the withdrawal or denunciation.

The events that followed after the letter are as follows;

The first respondent did not attend a disciplinary hearing to determine charges laid against him set for 22 March 2012 resulting in his suspension from membership of the church being upheld. Rev Oniyas Z. Gumbo was appointed as Overseer in his stead. The first respondent maintains that he is still the Overseer of the applicant. The situation on the ground is that both Rev Gumbo and Sibanda claim to be Overseers of the applicant. On 22 March 2014, the respondents issued summons against Darrel Lee, the Superintendent General, seeking to nullify the first respondent's suspension, nullification of Rev Gumbo's appointment and an order interdicting him from interference, outside the applicant's Constitution, with the operations of the applicant.

The respondents have not moved away from the applicant's church or formed a separate church. The first respondent claims to be still the Overseer when the Parent Church has appointed someone else in his place. There does not seem to be much of a relationship between the respondents and the Parent Church except for the litigation between the parties. The parties are engaged in fierce confrontation. The respondents have refused to submit to the authority of the Parent Church.

A great schism has occurred.

In this application, the applicant seeks a declaration to the effect that;

(i) The respondents are no longer members of the applicant and have lost rights to fellowship under the applicant or to make use of the applicant's properties or amenities as well as its name.

(ii) Secondly, that the respondents should immediately stop and desist from making use of the applicant's name or any name which may be confused with the applicant's.

(iii) Thirdly, that the respondents shall relinquish possession and use of the applicant's property.

The applicant maintains that the respondents have severed ties with the church by repudiating their positions in the applicant and have seceded from the church. That the first respondent should not carry out ministerial work without valid credentials. The applicant contends that the letter of 3 February 2012 shows that the respondents will not accept leadership from America and that they will choose their own leadership. The applicant submitted that the applicant considers this as a denunciation of the authority of the Parent Church. That the respondents have severed ties with the applicant.

The court was called upon to consider the effect of the declaration that the respondent no longer owes allegiance to the main church and whether the respondent has seceded from the church.

The respondents, apart from opposing the merits of this application, raised points in limine relating to the matter being lis pendens in Bulawayo; the existence of disputes of fact; the authority of Mr Gumbo to depose to the founding affidavit. These points were later abandoned after the parties agreed that the sole issue to be determined by the court was whether the respondents still have any relationship with the applicant.

The parties agreed that if it is found that there is no longer any relationship with the church, the respondents cannot make use of the applicant's assets and that's the end of the matter.

Counsel for the respondents urged the court, in resolving this dispute, to have regard to the Constitution of the applicant church and the parties before it….,. The respondents submitted as follows;

The parties are the local AFM Church and the American or Parent church. The party before the court relying on the letter is the local church. The Parent Church is not before the court. That the party claiming that there was secession is not before the court but in proceedings pending in Bulawayo. The respondents submitted that there is recognition that the applicant is a legal persona which has never been part of the Parent Church except for affiliation. The application must fail because the Parent Church is not before the court and is not seeking any relief. That the party in respect of whom the alleged secession took place must be the party seeking relief. The respondents maintained that the applicant would have been able to take legal action for the relief sought if Rev Sibanda had parted ways with the local church.

The respondents refute that they have seceded from the church, and, further, that there is any letter relied on in terms of which the respondents seceded from the local church. The respondents also refute that paragraph 5 of the letter in issue reflects that the respondents were not accepting leadership from America. They contend that the letter written by their legal practitioners is not a letter of resignation or secession but just a letter written by legal representatives of the local church. They contend, further, that it was a letter of protest in which they simply expressed an intention to resign. The respondents submitted that the first respondent has always conducted himself in accordance with the church Constitution. The respondents refute allegations that the first respondent amended the Constitution but contend that they sent a notice of the church Constitution amendment to the Parent Church as a mere proposal. The respondents maintained that the first respondent still continues to discharge his functions as an Overseer in accordance with the church Constitution. The respondents maintain that they did not secede from the church and have not parted ways with the applicant….,.

Article 1 of the Constitution of the applicant church states that the applicant “shall be a branch of the Apostolic Faith Mission of Portland, Oregon USA, a worldwide organisation.”

Article 5 of the same Constitution provides as follows:

“The doctrines and rules of the Apostolic Faith Mission of Portland, Oregon (Southern African Headquarters) Inc, shall be the same as the parent church in Portland, Oregon…,.”

The Constitution of the applicant reveals that the applicant is a branch of the Parent church and is affiliated to it. Being a branch of the Parent Church, it essentially is a part of it. It has the same doctrines and rules as the Parent Church. The applicant owes canonical obedience to the Parent Church. The local church is an integral part of the Parent Church. The applicant and the Parent church are part of a whole. Being a branch of the Parent Church, any denunciation of the Parent Church is necessarily a denunciation of the applicant church. An act of rebellion against the Parent Church is an act of rebellion against the its branch. Any person or splinter group which denounces a Parent Church with this sort of set up cannot remain a legitimate member of its church branch….,.

This dispute centres on the doctrines and rules of the Parent Church.

The respondents are at loggerheads arising mainly from the existence of two choirs in the applicant; use of a uniform by the choir; the taking of legal disputes to court; litigating against faithful members of the church contrary to scripture; and submission to the Parent Church.

These are doctrinal disputes.

The applicant's argument is that if the respondents do not agree with the canons or doctrines of the Parent Church, resulting in them instructing their legal practitioners to pen the letter in issue, they cannot continue to be members of and lead a branch or chapter of the Parent Church which follows the same doctrines they challenge or disagree with….,.

I now turn to the merits of this application.

Prior to this letter, the relationship between the first respondent and the Parent Church had been acrimonious. The long-standing dispute started with the uniform saga. It was followed by the first respondent's dismissal in 2005; the long feud involving litigation over the first respondent's dismissal as Overseer and litigation against other pastors; and leadership from America being denied access to church premises. The letter of 2^nd February, and further litigation, indisputably heightened the schism already prevalent in the church.

Three words stand out as describing the respondents' conduct in the applicant's case. They are that they 'seceded', 'resigned' and caused a 'schism' in the church.

The verb 'secede' is borrowed from the Latin word 'sece-dere' meaning an act of withdrawal.

''Secede'' is defined, in The Free Dictionary, as 'a formal withdrawal of membership, as from a political alliance, church, organisation, ect'.'

Thesaurus defines it as follows; 'to withdraw, leave, resign, separate, retire, quit, pull-out, break with, split from, disaffiliate, apostatize'.

The word 'secede' means the same as to withdraw or resign. A party is said to have seceded from a church or other organisation when it has severed ties, withdrawn, quit or resigned from it.

In Bishop Jakazi and Anor v Anglican Church of the Province of Central Africa SC10-13 the court stated that resignation is a unilateral act which takes effect upon being communicated. See Riva v NSSA 2002 (1) ZLR 412 (H)…, where the court said;

“It is common cause between parties that the giving of notice is a unilateral act; it requires no acceptance thereof or concurrence therein by the party receiving the notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it. It seems to me to follow that notice, once given, is final and cannot be withdrawn except, obviously, with consent…,.”

See also Muzengi v Standard Chartered Bank of Zimbabwe Ltd & Anor 2002 (1) ZLR 334 (S).

The Supreme Court, in The Church of the Province of Central Africa v Diocesan Trustees for the Diocese of Harare SC48-12 held that resignation is a question of fact and can be by conduct. The court further held that where evidence shows that a person exercised his right to terminate the relationship with the church, the resignation takes effect immediately the conduct is committed and that acceptance of a resignation does not depend upon acceptance by the person to whom it is directed. The court also held that the taking of any action inconsistent with the creed of the church amounted to repudiation, by the party so taking the action, of their position in church. Further, that a departure from the doctrinal basis upon which the church is founded amounts to repudiation.

Where a withdrawal is effected by means of a resignation, the resignation should be formal and ought to have been communicated. Once the resignation has been communicated it becomes binding on the giver unless it is withdrawn with the consent of the other party. There is no requirement that it be accepted or be responded to.

In The Church of the Province of Central Africa v Diocesan Trustees for the Diocese of Harare SC48-12, the court defined the word 'schism' and relied on the meaning in The Concise Oxford Dictionary (1990) which defines it as,''the separation of a church into two churches or the secession of a group owing to doctrinal, disciplinary differences.''

The court, in that case, held that a person who has created a schism cannot be heard to say he has not withdrawn from the church.

Where a splinter group has risen in a church because of differences in doctrine resulting in a split, and one group wishes to break away from the Parent Church, that conduct amounts to a schism. A splinter group which denounces the doctrines of the church cannot insist that it has not withdrawn from it and still remain part of it.

The letter is written to the Parent Church. It includes the applicant as well as all church members as parties to the letter. The letter was written by the respondent's legal practitioners, on clients' instructions and on their behalf. The respondents have not denied giving those instructions to their legal practitioners. The respondents' contention that it is their legal practitioners who wrote the letter and not the respondents themselves, and, hence, it is not binding on them is preposterous.

Who better than the respondent's own legal practitioners to have communicated the resignation?

It is their letter and the respondents own the contents therein. Where a legal practitioner tenders a resignation on behalf of his client and he communicates it, that resignation is binding on the client and becomes that of the client unless it has been shown that the legal practitioner acted without instructions.

The resignation, once made, was communicated to the Parent Church. The respondents resigned unilaterally and the resignation took effect upon its communication and did not depend upon acceptance by the applicant or the Parent Church. The resignation took effect as soon as the letter was received by Darrel D. Lee. The letter constitutes a resignation letter and once that resignation was communicated, the respondents ceased to be members of the Parent Church from that moment henceforth.

The contents of this letter amount to a resignation.

The respondents denounce leadership from America. They state that they will not accept leadership from America and will choose their own leadership. God will give them guidance on succession issues. The letter evinces a clear and unambiguous intention to part with the Parent Church. The letter has the effect of denunciating and resigning from the Parent Church. The respondent's act of renunciation had the effect of cutting the umbilical cord with the applicant. The respondents made a conscious decision to sever ties with the Parent Church and effectively withdrew their membership of the applicant church. The act of denouncing leadership of the Parent Church, or any affiliation with it, amounts to repudiation by the respondents of their position in the church as a whole - and that is inclusive of branches of the church. Once the respondents decided that they no longer subscribed to the church's authority, they severed ties with both the Parent Church and any other church or branch of it that observed and followed the same doctrines. The applicant is part of the world wide church. The respondents cannot claim to remain part of an organisation whose leadership they repudiated. By resigning from the church, the respondents stripped themselves of membership of the church.

The fact that the respondents have decided to part ways with the Parent Church is confirmed by their conduct. This position was well enunciated in Sick and Funeral Society of St John's Sunday School v Golcar (1973) 1 CH 51…, where the court remarked as follows regarding resignation by conduct;

“It must be accepted that there can be resignation by conduct in addition to resignation by words.”

I am not persuaded by the respondent's defence that the letter was merely a protest. The wording and tone of the letter, as well as the conduct of the respondents, shows that the respondents had made a decision to part ways with the Parent Church and were determined to do so. The conduct of the respondents, in amending the Constitution, amounts to an act of pure defiance and such conduct is supportive of the assertion that they resigned from the church.

The respondents sought to change the Constitution without the authority and approval of the Parent Church. Article 5 of the Constitution of the church makes it clear that the applicant shall not change any rule or doctrine without the recommendation or approval of the Parent Church. The respondents became an authority unto themselves. They did not care whether the Parent Church approved the changes to the Constitution or not.

The respondents refute that they amended the Constitution, and argue, instead, that the amendments were merely proposals of the amendments sought to be made.

The letter gives the Parent Church a choice “to either understand the amendments or try to build on a great relationship with Southern Africa under an affiliate status” or listen to false information. The respondents express a preparedness to proceed with the amendments of the Constitution. It does not appear as if the Parent Church had any discretion in the matter. The copy of the amended Constitution was for their information only. The amendments were not proposals because the respondents were going to proceed with the amendments anyway. It was either the Parent Church tried to understand the amendments and try to build on a great relationship with Southern Africa under an affiliate status or listen to false information. The attached Board resolution shows that the respondents sat and resolved to amend the Constitution immediately, failing which a formal court application would be made to effect the changes. They were seriously pursuing their withdrawal from the church. The respondents sought to change the Constitution of the church without approval of the Parent Church.

An analysis of the amendments shows that the respondents intended to sever ties with the Parent Church and had decided to break from the Parent Church and put in place their own systems. Some of the Board members were not advised of the meeting which came up with the amendments.

The applicant is, in terms of their Article 1, now affiliated to the Parent Church only and is no more a branch contrary to Article 1 of the Constitution of the applicant. The respondents seek, through the amendments, to make the first respondent the ultimate authority. The Overseer is responsible for nominating the Board of Trustees, previously known as the Board of Directors. There is no provision for approval of the Parent Church. They chose a new set of trustees in terms of the amended Constitution to govern the applicant. In their letter of resignation, they already make the new Board of Trustees being part of the letter of resignation. This shows that the amendments and changes were already effective and the respondents considered themselves as having parted ways with the applicant. The content of the amended Constitution confirms the respondent's decision to sever ties with the Parent Church. This shows that the amendments were not proposals but had already actually been effected.

The respondents tried to wrestle control of the local church from the Parent Church through the Constitutional amendments. The first respondent wanted to make himself the ultimate authority in Southern Africa. The first respondent led this revolt notwithstanding that he was on suspension from membership of the church. The first respondent was appointed into the position of Overseer by the Parent Church. Once he repudiated the authority of the Parent Church, he repudiated his own position as Overseer with the applicant. The respondents resigned from the Parent Church, they cannot not remain part of a branch led and guided by the Parent Church - the applicant. By resigning from the Parent Church, the respondents, in effect, seceded and withdrew from the applicant as well. No relationship exists between the Parent Church, the applicant, and the respondents.

The respondents severed ties with the Parent Church.

Once the respondents resigned from the Parent Church, on the basis of differences in doctrines, they effectively resigned from the applicant church. The same doctrines applicable in the local church are the same as those of the Parent Church. It is not realistic that the respondents would secede from the Parent Church and remain in the local church and still remain under the control of the Parent Church. The departure from the doctrinal basis of the church amounts to repudiation. The respondents have caused such a schism to the extent that it is impossible to say that they remain part of the church.

The respondents no longer subscribe to the doctrines and canons of the Parent Church. They have no right to continue to use the applicant's name. The respondents conceded that should the court find that the respondents seceded from the church, they are not entitled to use and control of the applicant's property.

That concession was well made.

The respondents undertook to cut ties with the church leadership and yet purport to be still part of the church leading the applicant - a branch of the Parent Church and controlling church assets and buildings. In The Church of the Province of Central Africa v Diocesan Trustees for the Diocese of Harare SC48-12…, the Supreme Court relied on the principle laid down in Ethiopian Church Trustees v Sonjica1926 EDL 107…, that after a withdrawal of membership from a church organisation, the property of the church must fall under the control and use of those who adhere to the fundamental principles of the church. The court held that a person who leaves the church leaves behind church property. The court remarked as follows;

“The property could not be applied to purposes which are alien to the purposes of the Trust and for the benefit of persons who have no title to call themselves members and office bearers of the church.”

See also Chong v Lee (1981) BCLR 13.

The court went on to remark, at page 36, that:

“Related to this is the principle that a member of a voluntary association who leaves the organisation whilst others remain must leave the property with those who have not resigned membership. When one leaves a club one does not take its property with him or her; it has long been established as a statutory principle of law in this area of property ownership that when one or more people secede from an existing church, they have no right to claim church property even when those who remain members of the congregation are in the minority.”

The court concluded that the property which was subject of the dispute belongs to the church and it has a right to vindication of the property against possessors who have no rights over it and that such persons had no right to continue possessing the congregation buildings when they had departed from the fundamental principles and standards on which the church is founded.

Any branch or chapter of the Apostolic Faith Mission of Oregon, wherever found, forms an integral part of the Church as a whole. Its property belongs to the denomination. Should any member resign or be deemed to have parted ways with the church, he ceases to be a member of the church as a whole. He leaves behind the property of the church. He cannot use the property unsanctioned by the church.

Once the respondents severed ties with the Parent Church they ceased to have any right of access over the property. The respondents lost the right to use the applicant's name, possession and use of the church's property. The property remains for the loyal members of the church. The applicant is entitled to the order sought.

The application is allowed. In the result, is ordered as follows;

IT IS DECLARED THAT,

1. 1^st 2^nd, 3^rd and 4^th Respondents are no longer members of Applicant and have lost all rights to fellowship under Applicant or make use of any of its properties or amenities as well as its name.

2. 1^st, 2^nd, 3^rd and 4^th Respondents shall immediately stop and shall at all times desist from making use of Applicant's name or any such name which may reasonably be confused with Applicant's name and which may give the impression that they have any association with Applicant.

3. 1^st, 2^nd,, 3^rd and 4^th Respondents shall immediately relinquish possession and use of all of Applicant's properties both movable and immovable whether held by them directly or by those claiming the right of any use of occupation through them and which are set out in “3.1” below and shall concede such use and possession to Applicant.

1. LAND AND BUILDINGS

1. Bulawayo: Church at Stand 61000, Size Road, and adjacent Stands for youth and women, Western Commonage No.6 Pelandaba;

2. Stand 36E, 37E, 38E, 39E, 40E, 54E, 55E Bekezela Street, Pelandaba;

3. House at No.16 Amatje Road, Four Winds, Bulawayo;

4. Greengables Farm, the remaining extent of Subdivision B of Dunstaal, Khami;

5. Plot 11 and 12, Shamrock Road, Gweru;

6. Lower Gweru at Gwabada Farm and Ekukanyei Weaving Centre;

7. Kwekwe: Stand No.383 Mbizo Township Church and residence, Amaveni Township Church;

8. Kadoma: Stand No. 4 Bwanali Street, Rimuka Township Church and Mission residence;

9. Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;

10. Masvingo: Stand 14 Mucheke Township, Masvingo;

11. Mutare: Stand No.7 Machekaire Street, Dangamvura Township, Mutare;

12. Buhera: Murambinda Township Church Stand;

13. Nyanga: Church at Bonde Kraal;

14. Mount Selinda: Chako Township Church Stand;

15. Chinhoyi: Stand 1159 Hunyani Township Church and residence;

16. Mahororo Business Centre Church Stand, Hurungwe;

17. Beitbridge: Stand 2384 Dulibadzimu and residence at No. 9;

18. Victoria Falls: Stand 2647 Victoria Falls;

19. Kariba: Stand 1727 Nyamhunga Township;

20. Chiredzi: 51 Makaza, Triangle, No.6 Nzimbe Township, Triangle;

21. Mwenezi: Sarahuru Township Church;

22. Mutoko: Mutoko Business Centre, Church Stand;

23. Pilgrims' Progress Restaurant, Kadoma;

24. Pilgrims' Progress Restaurant, Gweru;

25. Bindura: 19/34 Musvosve Street, Stand at Chipadze Township and Trojan Mine;

26. All motor vehicle and church assets under their control;

27. Chipinda Church Stand; and

28. Hwange: No.2 Glencoe Road, Railton, Hwange.

4. 1^st, 2^nd, 3^rd and 4^th Respondents are to bear the costs of this application.

There are two appeals against judgments of the High Court. The first decision appealed against is in Case No. HC4327/08 whilst the second appeal is against the judgment in Case No. HC6544/07. Both decisions were made by the same judge.

At the centre of the dispute in each case is the question whether those people who had been members of the Board of Trustees for the Diocese of Harare relinquished the right to control the appellant's property on 21 September 2007. Put differently, but directly, the question raised by both appeals is; did those people who had been members of the Board of Trustees for the Diocese of Harare withdraw their membership from the appellant, and, ipso facto, resign their offices thereby losing the right to control its property such as church buildings, houses, schools, motor vehicles and funds in banks?

The appellant shall hereinafter be referred to as “the Church”, or “the Province” or “the Appellant Church” as the context permits.

Who are the parties involved in the dispute over the right of control and occupation of the property?

The Appellant Church is a voluntary association of members whose main objective is to hold the faith of Jesus Christ and act in accordance with the doctrines in which it is embodied. The Church was formed on 8 May 1955 out of four dioceses of Northern Rhodesia, Nyasaland, Mashonaland and Matabeleland under the terms and provisions of the Constitution contained in what is known as the 'Green Book'. The first two dioceses had previously fallen under the administrative jurisdiction of the Church of the Province of Cape Town, headed by the Archbishop of Cape Town. The other two had formed the administrative area of the Church of the Province of Canterbury, under the Archbishop of Canterbury. The preamble to the Constitution of the Church (“the Constitution”) recites that it was established to cover the dioceses to strengthen it in the work of “witnessing in Central Africa the redemption wrought for all men in Christ.” Today, “the Church” has, as its administrative area, the whole of the four countries of Botswana, Malawi, Zambia and Zimbabwe under the control of an ecclesiastical authority headed by an Archbishop.

The terms and provisions of the Constitution and the Canons under the authority of which they are made show the following:

The Church is made up of clerical as well as lay members who are voluntarily associated together. They all hold the faith of Christ as taught in the Holy Scriptures, preached by the Apostles and expressed in the doctrines, sacrament and discipline in the public worship of God according to the principles set forth in the Book of Common Prayer. It is by the Constitution, which constitutes an agreement between members, that the faith by which all those people who choose to take up membership of the Church and the standards in accordance with which they undertake to act is revealed. The standards and principles which govern specific matters of worship, government and discipline in the Church all relate to and find ultimate justification in conformity with the faith and the doctrines by which it is expressed. It goes without saying that membership of the Church is a public confession of the faith of Christ. It is a declaration of commitment to act, at all times and places, in accordance with the doctrines and the mutual rules of the Constitution.

That is the contract in terms of which each person binds himself or herself to others as a member and office-bearer in the Church. It is by reference to adherence to the unity of the doctrines and the rules as the standard of behaviour that any religious group of people can lay claim to being described or identified as part of the Church.

In terms of Article 2 of the Constitution, the Church is under the general authority of the Archbishop who sits in the Provincial Synod. This is the legislative body of the Church dealing with the making of rules for the order, good governance, worship and discipline in the Province. The Provincial Synod is made up of Bishops of the Province, Clergy and Laity who are communicants. The Archbishop also sits in the Episcopal Synod. This is a body dealing with matters of faith such as the preservation of the truth of the Church's doctrine, the purity of its life and the worthiness of its worship. The Episcopal Synod is made up of Bishops of the Province only. The Archbishop, who presides over the two bodies, administers all the functions of the Church to members in the dioceses through Bishops who are the heads of the dioceses. A Diocesan Bishop is elected or chosen from among the male communicants of any diocese who are over 21 years of age. He is a member of and presides over the proceedings of the Diocesan Synod. He also administers property rights owned by the Church through a Board of Trustees which he heads. Under the supervision of the Archbishop, a Diocesan Bishop is “chief in superintendency” in matters ecclesiastical within the diocese. Members of the Diocesan Board of Trustees are appointed by the Diocesan Synod.

The Archbishop is also a Bishop of a diocese. He is elected to the office in accordance with the Canons of the Church. In terms of the Constitution, every member, including Bishops, is bound to obey the lawful directions and instructions of the Archbishop and give to him due obedience. The powers exercised by the Archbishop, through the two organs of the Church, are limited to ecclesiastical matters as distinguished from temporal affairs. There is obviously a condition implied that the powers shall be used bona fide for the purposes for which they are conferred.

It is declared, as one of the fundamental principles of the Church, and, therefore, binding on individual members, that:

“In conformity with Christian doctrine, the Church of this Province proclaims the equal value of all men before the righteous Love of God, and while careful to provide for the special needs of different peoples committed to its charge, allows no discrimination on grounds of racial difference only, in the membership and government of the Church.” (Fundamental Declaration III).

As at 4 August 2007, the Diocesan Bishop of Harare was the Rt. Reverend Dr Nolbert Kunonga. He was a member of the Board of nine Trustees responsible for holding, managing and using Church property, in trust, and on behalf of the Province.

Article 20, as read with Article 23, of the Constitution requires that all movable or immovable property of the Church be held, managed or used by the Trustees, in trust, for and on behalf of the Province. That applies even to Diocesan Boards of Trustees appointed by Diocesan Synods. The management of Church property held by a Diocesan Board of Trustees is required to be in accordance with rules made by the Provincial Synod. Under Article 18 of the Constitution, the Provincial Synod have the full power and authority to determine in what manner and upon what conditions such property shall be used or occupied.

Under Article 24, no-one is allowed to be admitted to any office in the Province or be entitled to receive any income, emolument or benefit from or out of any property held under the authority of the Provincial Synod unless he or she has signed a declaration of submission to the Canons or Rules of the Province relating to such office.

The respondent is made up of Dr Kunonga, who was the Diocesan Bishop of Harare, and those people with whom he constituted the Board of Trustees for the Diocese of Harare before 21 September 2007. They claimed that they remained in those positions after that date with the right to hold Church property.

What then brought about the situation in which the dispute over the right of control and occupation of Church property arose?

A debate which had started in the Church sometime back on the question whether homosexuality was being tolerated by the ecclesiastical authorities reached crisis point in Zimbabwe on 4 August 2007. This was an emotional subject over which different opinions were bound to be held by different members of the Church who engaged in the debate.

Dr Kunonga and his followers held very strong views on the question of tolerance of homosexuality.

They approached the debate on the assumption that homosexuality, as a practice, was being tolerated by the authorities in the Church. Whilst not conceding that homosexuality, as a practice, was tolerated in the Church, the other side argued that all men and women are God's children. The effect of the argument was that even if some men are homosexuals they remain human beings entitled to be treated with dignity as long as they do not practice homosexuality in Church or in violation of the law of the land. The debate took place in the context of the Constitution which contains Fundamental Declaration III and the note to Canon 22. The note to Canon 22 provides that:

“The Church of this Province believes that marriage, by divine institution, is a lifelong and exclusive union and partnership between one man and one woman. Its Law and regulation are based on this belief.”

Dr Kunonga and his followers elevated the anti-homosexuality argument to the level of proposing it as a policy of the Church that there should be no association by members with homosexuals or anyone who supported or sympathised with them. According to them, it had to be a policy of the Church that people of such sexual orientation must not even be allowed to worship God in the Church. Similarly, those who supported or sympathised with homosexuals had to be denied freedom of worship. They upgraded the proposition to a fundamental principle of faith to the extent that they attempted to have the whole Church dissolved on account of the differences over it. The importance of the principle they formulated arises from the place they sought to assign to it in the Church.

At a meeting of the Diocesan Synod held on 4 August 2007, Dr Kunonga and his adherents resolved to secede from the Church over the issue of homosexuality. As a result, at the Provincial Synod meeting held at Mangochi in Malawi on 5 -10 September 2007, a representative of the Diocesan Bishop of Harare seconded a motion moved by the Diocesan Bishop of Manicaland to the effect that the Church of the Province of Central Africa be dissolved. After debate, the Provincial Synod rejected the motion. The ground was that although the issue of homosexuality was being raised, the Diocesan Bishops of Harare and Manicaland wanted the dissolution of the Province. The effect of the decision was that Dr Kunonga and his followers were interested in creating their own centre of ecclesiastical power with Zimbabwe as the Province. It was not necessary to dissolve the Province to solve the anti-homosexuality problem.

Having failed to achieve their objective through the dissolution of the Province, Dr. Kunonga and his followers fell back on what they conceived was within their power as the Board of Trustees of the Diocese of Harare. Dr Kunonga wrote a letter to the outgoing Archbishop on 21 September 2007. It was a notification of withdrawal of the Diocese of Harare from the Province with effect from 4 August 2007. It is clear from the letter that the object was the creation of Zimbabwe as a Province. The letter reads:

“RE: FORMAL WITHDRAWAL OF THE DIOCESE OF HARARE FROM THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA

The above refers, from the Bishop of the Diocese of Harare, Diocesan Synod, Standing Committee, Diocesan Trustees and the whole body of the Church in the Diocese.

By copy of this letter, the Diocese of Harare would like to formalise its exclusion from the Church of the Province of Central Africa as minuted in the records of the Provincial Synod of 2007, September the 8^th, which we trust you hold.

You will appreciate our relationship with the Province has been indeed a lifelong one full with genuine authentic Christian sharing. This Province has been a source from which we have drawn our livelihood in terms of Christian virtue in as much as it is from us. Our communion has been guided by nothing else than the moral doctrine of Christ, which was one based on the premise that we hold primary the fundamental canons of faith which are indeed in the Sacred Scriptures. It is our fear and reverence of these that made us to seriously weigh our susceptibility when faced with a threat of compromise and breach of the said in the face of what our Province was and is facing now viz HOMOSEXUALITY.

We take it on good grounds that this has become an issue in our church in the Province and unlike what the members of Synod and the Episcopal Bench wanted us to believe, this is not a matter of desktop contemplation - it is, to us, a matter of faith and conscience. We refer you to the following as cause for our withdrawal from the Church of the Province of Central Africa.

OUR ROOTS IN THE SACRED SCRIPTURES

The Diocese of Harare has always believed and upheld the Primacy and Precedence of the Sacred Scriptures over any act of reason or tradition. The Old Testament is very explicit about its abomination and ultimate condemnation to the practice (Gen.19, Lev.18:22 and Deut.23:17). The New Testament is equally vehement against the sin of homosexuality. Paul says this is being directly opposed to nature and hence the plan of God and in fact warrants exclusion from the Kingdom of God (Rom.1:18-22; 1 Cor. 6:9-10). We strongly believe, and rightly so, that the Church is indeed the shadow of the eternal Kingdom and must strive to demonstrate congruence in this regard. For us then, it is not an option to exclude from our fold such people or elements that have embraced, out of their own free will, support or sympathy towards homosexuals. It is mission, it is the mandate upon which we must launch our mission as the Church. If this Province is being made part of or accommodative to people of this nature, we, as a Diocese, are withdrawing and we are doing this with a very clear conscience as for us this is matter of life or death in matters of faith.

No amount of reason, persuasion, or position for us can supersede the teaching of God as found in the Sacred Scriptures. For the Diocese of Harare, the rejection of homosexuality is based on nothing else except this fundamental doctrine upon which canon, act or utterance by the Church or anyone representing it must be based. We reject any compromise or tolerance when it comes to this. As a Diocese we are saying, at the slightest sight of compromise, tolerance or indulgence from our midst in the Province, we would rather exclude ourselves than be part of a conscience-wrecking process where room to homosexuality is being granted.

Knowing very well your own position against homosexuality, it is frightening to us, the level of advances this scourge has reached and its fast coming as you are retiring. This had urged us to pull out as a Diocese.

Consistent, therefore, with our 61^st Session Diocesan Synod on the 4^th of August 2007, in accordance with the Scriptures and the will of God, we were mandated by our Synod to dis-associate and sever ties with any individual, group of people, organization, institution, diocese, province which sympathizes or compromises with homosexuality. We, the Diocese of Harare, would like it to be put on record that with effect from the 4^th of August 2007, and as confirmed by the Provincial Synod, we are withdrawing from the Church of the Province of Central Africa.

We have no hard feeling about our departure from the Province.”

In a letter written on its behalf by the Rt. Reverend Albert Chama, Dean of the Province of Central Africa & Bishop of Northern Zambia, on 16 October 2007, the Church responded. The letter reads:

“RE: ACCEPTANCE OF THE WITHDRAWAL OF THE BISHOP OF HARARE FROM THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA

Dear Bishop Kunonga,

I am in receipt of your letter dated 21^st September 2007, addressed to the former Archbishop of the Province, the Most Reverend Dr. B A Malango, advising him of the formal withdrawal of the Diocese of Harare from the Church of the Province of Central Africa.

I would first like to advise you that it is constitutionally and canonically impossible to withdraw the Diocese of Harare from the Church of the Province of Central Africa because a diocese, in accordance with the Constitution of the Church of the Province of Central Africa, forms an integral part of the said Province. Any act that purports to withdraw a diocese is unconstitutional and uncanonical as this action is tantamount to altering the very structure and essence of the Province. The Constitution and Canons of the Church of the Province of Central Africa specifically stipulate that any alteration of the Province would require the approval of the Provincial Synod, after the Synod of each Diocese in the Province has also approved and confirmed, by the Provincial Synod, by a two-thirds majority of those present and has subsequently been endorsed by the Archbishop of Canterbury as not affecting the terms of Communion between the Church of this Province, the Church of England, and the rest of the Anglican Communion.

Consequently, the heading of your letter stating the “Formal Withdrawal of the Diocese of Harare from the Province of Central Africa” is unacceptable and misleading.

We, however, as the Dean of the Province of Central Africa accept and acknowledge that you, and some of your supporters have, by notice of your letter, severed relationship with the Province of Central Africa.

Therefore, I declare that the See of Harare is, with immediate effect, vacant and in accordance with Canon 14(1).

I shall be appointing a Vicar General to hold office whilst the necessary steps are taken for the holding of an elective assembly to elect the next Bishop for the Diocese of Harare.

Given your leaving the Church of the Province of Central Africa we direct that all properties and assets belonging to the Province should be surrendered immediately to the Vicar General whose name we shall give you in a few days' time.

It is most unfortunate that your relationship with the Church of the Province of Central Africa has come to an end. We commend you to God's gracious keeping.

Yours in Christ,”

How did the parties treat each other thereafter?

One of the members of the Board of Trustees at the time, Phillip Baki Mutasa, strongly opposed the decision taken by the Board of Trustees of the Diocese of Harare to secede from the Church. He was the Vice Chairman of the Board of Trustees for the Diocese of Harare. He disassociated himself from the decision to withdraw membership from the Church. He sued some of the people for defamation damages arising from false allegations made in a letter dated 20 October 2007. The allegations were to the effect that he had acted out of self-interest in challenging Dr Kunonga's right to take possession of Church property on the ground that he had withdrawn membership from the Church.

On 28 October 2007, sixty-nine clergy wrote to wardens and laity members of the Church in the Diocese of Harare making it clear that Dr Kunonga and themselves had moved out of the Church. They pledged support for Dr Kunonga. Referring to the letter of 16 October 2007, from the Rt. Reverend Albert Chama, they said:

“It is a myth to us why they want to force us to go back to a scenario where we will be brushing shoulders with perpetrators of homosexuality. We refuse to accept that. In fact, we are now forced to make inference that maybe they have been hard hit because they share the same values. For them what is at stake is confusion and not order in the Church. They are causing untold anxiety among all our members and we want you to know that as your clergy we stand for orderliness in the Church. We urge you to be careful of their false teachings as Paul warns in 2 Tim. 4:3:5. They are trying hard to use the rules of a “game” we have abandoned - it does not work.

We have withdrawn from the Province of Central Africa period.

Trying to use the rules of our former Province over us is only tantamount to mischief and lack of integrity…,. We affirm that it is very clear we are joining another Province that maintains the same discipline over the homosexuals as ourselves and the formalities for that are being finalised and every stage will be shared with you.”

It is clear from the sentiments expressed that the intention of Dr Kunonga and his followers was not just to withdraw the Diocese of Harare from the Province. Those involved also intended to withdraw, and regarded themselves as having withdrawn, their individual membership from the Church. They had decided to join another Church which was about to be formed.

On 7 November 2007, the Dean of the Province declared the office of the Diocesan Bishop of Harare vacant with effect from 16 October. He appointed Bishop Sebastan Bakare to act as Diocesan Bishop of Harare until the election of a substantive incumbent.

On 20 December 2007, an Extraordinary meeting of the Episcopal Synod of the Church decided, in terms of Canon (6)(6), that Dr Kunonga and his followers had left the Church. The meeting decided that Dr. Kunonga had, as a result of his behaviour, resigned as a Bishop of the Province. They revoked his pastoral licence.

Notwithstanding these events, which were based on the acceptance, as a fact, that Dr Kunonga and his followers had voluntarily left the Church over the issue of homosexuality, they did not immediately deny that they had done so.

Dr Kunonga and his followers responded, on 12 January 2008, by forming a new ministry which they called the Anglican Church of the Province of Zimbabwe. Dr Kunonga was consecrated and enthroned, by one of the Bishops of the new Church, as their Archbishop. He took up office, from which he consecrated and enthroned some of his followers as Diocesan Bishops of the new Church. Those who took part in the inauguration ceremony were clear in their minds that they had pulled out of the Appellant Church to form their own. They formed a Province with five dioceses each headed by a Bishop consecrated and enthroned by Dr Kunonga. The support for the secession was passionate. There is no doubt that it was an association based on the agreement of the individuals involved.

Dr Kunonga and his followers did not surrender possession of the property of the Church upon secession.

On 12 May 2008, Dr Kunonga was excommunicated from the Church, together with his supporters. The parties took the dispute to the High Court. Litigation commenced by the Church was for orders directing Dr Kunonga and his followers to vacate or surrender possession of its property. Dr Kunonga and his followers instituted proceedings seeking orders declaring that they were still members of the Board of Trustees for the Diocese of Harare entitled to the control of Church property in the diocese.

On 20 November 2007, in case HC6544/2007, the Appellant Church issued summons against Dr Kunonga and six others who claimed to be members of the Board of Trustees of the Diocese of Harare. It claimed orders interdicting them from holding themselves out as its office bearers and directing them to surrender movable and immovable assets in their possession. Dr Kunonga, and others, opposed the claim. They alleged that the property in their possession was owned by the Diocese of Harare.

They admitted that they had left the Church. The contention was that they were holding the property on behalf of the Diocese of Harare.

In case HC4327/08, the subject of this appeal, Dr Kunonga sought, by application to the High Court, an order that he and his followers were the Board of Trustees for the Diocese of Harare. He also made an application for an order declaring that he was the incumbent Diocesan Bishop of Harare, and interdicting the Appellant Church from consecrating and enthroning any other person as such office-bearer.

The learned judge took the view that the issues raised before him in case HC4327/08 were the same as those pending before the court in HC6544/07. He decided to determine all the issues thereby pre-empting the commencement of the trial in the later case. The learned judge held that a diocese is an administrative area of a Church. It is not a legal entity capable of removal from a Church. He concluded that the withdrawal of the Diocese of Harare from the Province, of which Dr Kunonga and his followers had given notice in the letter of 21 September 2007, was a nullity.

The learned judge held that Dr Kunonga and his adherents had not withdrawn their membership from the Church. He said:

“The applicants might have expressed their desire to sever ties between the diocese and the province in very strong terms, as noted by the respondent, but nowhere in their letter do they evince a desire to withdraw as individuals.”

The learned judge held that Dr Kunonga and supporters were entitled to the control of the property of the Church. He was of the view that if they had committed acts of misconduct, disciplinary proceedings should have been instituted against them as provided by the Constitution and Canons of the Appellant Church. He said:

“Now, if what the applicants did constituted an offence in terms of the canons of the Church, then they should have been charged, tried and punished accordingly. Ex-communication is a form of punishment following a trial. It has not been shown that any such trial took place. The formation of a new Province may be an act in violation of the canons of the Church and the Church would be within its rights to punish such an act in terms of its own procedures. The courts will not interfere, for example, as regards whether or not certain acts are punishable by excommunication or not, as these issues are within the ecclesiastical competency of the respondent. However, no such trials, in terms of the canons of the Church, have taken place.”

On the question of their positions as Trustees, the learned judge said:

“The analysis pertaining to the issue of locus standi has already led to the conclusion that the applicants do have locus standi to bring this application; that they have not been lawfully removed from their positions as trustees; and, until they are so removed, they continue to hold those positions and the property of the Church in trust.”

The learned judge then gave orders declaring Dr Kunonga, and six others, to be the Trustees of the Diocese of Harare. He ordered that “the property of the Diocese of Harare”, whether movable or immovable, owned by the Church within the Diocese, be vested in them. The Church was ordered to give Dr Kunonga and others vacant possession and/or control of the property. The Deputy Sheriff, with the assistance of the police, was authorised, at the direction of Dr Kunonga and others, to ensure that they took vacant possession or occupation of the property. The learned judge went on to dismiss with costs the Church's claim in case no. HC6544/07.

The appeals against the judgments in the two cases were then lodged with the Supreme Court. The grounds of appeal allege misdirection on the part of the court a quo in holding that:

(i) Dr Kunonga and his followers did not withdraw their membership from the Church.

(ii) Dr Kunonga did not resign the office of Diocesan Bishop of Harare.

(iii) He and the others remained members of the Board of Trustees for the Diocese of Harare entitling them to the possession or occupation and control of the property of the Church.

The first question to be determined is whether the learned judge correctly found, as proved, that Dr Kunonga and his followers did not withdraw their membership from the Church on 21 September 2007.

In the face of the documents, and evidence of the words and actions of Dr Kunonga and his adherents the court is unable to uphold the learned judge's finding. The reasons for the decision are these:

The learned judge directed his mind to the letter of 21 September 2007, particularly the absence of an express statement that Dr Kunonga and his followers had withdrawn their membership from the Church. As a result, he shut his mind to other evidence which had a direct bearing on the matter. It was his duty to decide the question of withdrawal of membership upon consideration of all the relevant evidence placed before him. Had the learned judge carried out his duty he would have appreciated that the anti-homosexuality stance adopted by Dr Kunonga and his followers was no longer consistent with their remaining members of the Church.

The belief of a Christian Church must be founded, in general, upon Holy Scriptures. What differentiates one Church from another is the accepted and crystallized definition of what they hold those Scriptures to contain – in other words their creed. If an association of Christians adopt any one creed as the basis of their association no one can cut and carve upon it without altering the foundation upon which that body has been associated. Free Church of Scotland v Lord Overtoun [1904] AC 515…,.

Dr Kunonga and his followers reached a stage where they regarded it a matter of faith that homosexuals and members of the Church who supported or sympathised with them should not be associated with. To them, these people (if they regarded them as such) had no right to worship God in the Church. It did not matter whether there was practice of homosexuality or not. Their faith in Jesus Christ did not entitle them to membership of the Church.

Needless to say that the view by Dr Kunonga and his followers of the doctrine on homosexuality, as taught in the Holy Scriptures, was different from that held by the other members of the Church. It was contrary to the fundamental principle of the “redemption wrought for all men in Christ” for the purpose of the witnessing of which the Church was established. It was a distinct principle from the fundamental principle of “equal value of all men before the righteous Love of God” proclaimed by the Church.

Great light is, in fact, thrown on what are the essential doctrines of a Church by reference to the declarations made by those who founded it as to what, in their view, was fundamental. The principle of “equal value of all men before the righteous Love of God” requires that members of the Church be tolerant and accept that God loves all men equally regardless of their spiritual, physical and moral state. The acceptance of this fundamental principle is laid upon every minister, office bearer and member who subscribes to the Constitution. It is a principle which obliges the Church to keep doors open to all who wish to come in and worship God provided they adhere to the faith of Jesus Christ as expressed in the doctrines taught by the Holy Scriptures and preached by the Apostles.

It is in that context of openness and tolerance that the Church can talk of a free offer of redemption and salvation of Jesus Christ. There would be no point in adhering to the principles of redemption and salvation of Christ when there is no opportunity given to people to be redeemed. By advocating the principle of exclusion of homosexuals and their supporters or sympathisers from public worship of God, Dr Kunonga and his followers adopted a distinct principle. With it was opposed to the fundamental principles of the free offer of redemption and salvation of Christ on the basis of which the Church is founded.

By definition, a Church is a voluntary and unincorporated association of individuals united on the basis of an agreement to be bound in their relation to each other by certain religious tenets and principles of worship, government and discipline. The existence of a Constitution is testimony to the fact that those who are members of the Church agree to be bound and guided in their behaviour as individuals or office – bearers on ecclesiastical matters by the provisions of the Constitution and the Canons made under its authority. It is the words and actions of the individuals, as members and office bearers, that indicate whether there is conformity with the articles of faith.

When Dr Kunonga wrote, in the letter of 21 September 2007, about the withdrawal of the Diocese of Harare from the Province, he could not exclude himself and his followers from the withdrawal. The words and actions belonged to them as individual members of the association. It is always up to the individual in a voluntary association to conduct himself or herself in accordance with the mutual standards of behaviour he or she freely undertook to observe in terms of the definite contract he or she would have entered into with others. The words and actions cannot be imputed to some legal person as would be the case with a corporate body created by law as a positive and definite entity.

Just as a person would have exercised the right to freedom of choice in becoming a member of a Church he or she has the right to leave it at his or her free will. The Constitution recognises the right in any member to leave the association once he or she believes that it no longer serves the purposes for which he or she joined it. A Church has no right to compel a person to remain its member. Compulsion would be contrary to section 21 of the Constitution of Zimbabwe which guarantees to any person the right to associate with others for the specific purpose of public worship of God in accordance with one's religious faith or belief. In other words, the State recognises the right of all to follow the dictates of their consciences in the religious opinion which they hold. No man or woman in this country has been punished for erroneous opinion concerning rites or modes of worship of God. The basic idea is that there should be good happiness amongst those who are united to worship God.

When looked at in the light of the distinctive principles on homosexuality which the parties adopted in relation to the requirements of faith under the Constitution the only reasonable inference to be drawn from the contents of the letter of 21 September 2007 is that Dr Kunonga and his followers gave notice of having withdrawn their membership from the Church.

It is important to bear in mind, when carrying out the analysis of the evidence, that it is not what the court might think of the importance of the difference between Dr Kunonga and his followers on the one hand and the others on the other, on the question of homosexuality, which matters. The court is interested in what the parties thought about the matter. Equally, it is not for the court to say whether the principles adhered to by either party on the question of homosexuality are bad or good. The court does not discuss the truth or reasonableness of any of the doctrines of the religious group. It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures. Whilst the court does not take notice of religious opinions with the view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the Church and who should possess and control Church property.

It is the duty of the court to decide the question raised by the appeals on the basis of whether the distinctive principle adopted by Dr Kunonga and his followers, on homosexuality, is consistent with the fundamental principles on which the Church is founded as contained in the Constitution and the Canons enacted under its authority.

The court accepts as a correct statement of law, made in Independent African Church v Maheya 1998 (1) ZLR 552 (H)…, relied upon by the same judge in the second decision of the case between the same parties reported in 2000 (1) ZLR 39 (H)…,. It is that disputes over ownership or possession and control of Church property should be resolved on the basis of the interpretation and application of the law of voluntary associations. That law requires consideration and application of the terms and provisions of the Constitution of the body concerned as well as the rules made under its authority.

The Court does not, however, accept as correct the statement of law in the two decisions to the effect that in the determination of questions of ownership or possession of Church property courts should not consider the “merits of doctrinal matters”. It is said courts ought to apply what is called “neutral principles of law”. These principles seem to relate to the interpretation and application of the law of voluntary associations. To support his view, the learned judge rejects as an incorrect statement of principle by the learned authors of “BAMFORD: The Law of Partnership and Voluntary Association in South Africa” 3ed. where they state…, that:

“In the case of religious associations, it is submitted that a court, in order to resolve questions of property, is entitled to resolve questions of ecclesiastical doctrine.”

It is not clear what the learned judge meant by the words 'merits of doctrinal matters.'

If one group of people claims that the property belongs to it whilst the other group also lays claim to the property, they are each of them treating the question of ownership of the property, or of its possession and control, as one of religious belief and obligation. They are not treating the question as one from which religious duties are excluded. In the absence of an express provision in the Constitution of a Church on how a dispute over ownership or possession and control of Church property should be resolved when members divide, how can a court decide which of the groups is made up of secessionists?

The court is of the view that “neutral principles of law” do not include the proposition that such factors as allegiance to a particular leader or which group is in the majority should determine entitlement to ownership or possession and control of Church property when members divide - unless there is an express provision in the Constitution requiring that such factors be decisive of the issue.

Adherence to the fundamental principles on which the Church is founded must be the factor on which disputes of ownership or possession and control of Church property are determined. Almost all Constitutions of Churches have as their subject-matters; the faith, worship, government and discipline. The Constitution would invariably make provision for matters of faith, as expressed in ecclesiastical doctrines and embodied in all the rules governing matters of worship, government and discipline by incorporation. It cannot be correct to say that whilst the Church considers the Word of God to be embodied as the primary command in the doctrines which are incorporated in the Constitution by reference, they should not constitute the standard to be considered and applied by the court in determining the rights and obligations of the parties over the property in dispute.

When rejecting the use of the factors of majority and allegiance to a leader in Free Church of Scotland v Lord Overtoun [1904] AC 515, LORD ROBERTSON observed that “since the days of Cyrus it has been held that justice is done by giving people not what fits them but what belongs to them.”

In Free Church of Scotland v Lord Overtoun [1904] AC 515, their Lordships were of the unanimous view that the question of adherence to the fundamental principles, on the basis of which a Church is founded, is the critical factor to be considered in the determination of a dispute over church property. They were agreed that the principle stated by LORD ELDON in Craigdalie v Aikman (1813) 1 DOW 1…, is the correct principle to apply. LORD DAVEY…, quotes LORD ELDON as having said:

“When this matter was formerly before the House we acted upon this principle; that if we could find out what were the religious principles of those who originally attended the chapel we should hold the building appropriated to the use of persons who adhere to the same religious principles.”

And after stating the result of the inquiries directed by the former judgment LORD ELDON said:

“Supposing that there is a division of religious opinions in the persons at present wishing to enjoy this building the question then would be which of them adhered to the opinions of those who had built the place of worship and which of them differed from those opinions? Those who still adhered to those religious principles, being more properly to be considered as the cestuisque trust of those who held this place of worship in trust than those who have departed altogether from the religious principles of those who founded this place, if I may so express it.”

At pp 612–613, the EARL OF HALSBURY LC said of the importance of the fundamental principles:

“Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines. Its creeds, confessions, formularies, tests and so forth are apparently intended to ensure the unity of the faith which its adherents profess, and certainly among all Christian Churches the essential idea of a creed or confession of faith appears to be the public acknowledgement of such and such religious views as a bond of union which binds them together as one Christian Community.”

The application of the principle of adherence to the fundamental principles of a Church supports the proposition that those who have departed from the standards and principles on which the Church is founded are more likely to leave it. For the purposes of establishing the fundamental principles of a Church it is not only the accepted interpretation of Scriptures that counts. An accepted interpretation of or inference from subordinate standards may just as well be an article of faith as any other opinion. There is no tenable distinction for the purpose between one religious principle or opinion and another. Free Church of Scotland v Lord Overtoun [1904] AC 515…,.

The rationale for the rejection of the application of the factor of majority lies in the concept of a Church as a voluntary association of individuals united by an agreement on the religious principles by which their affairs as individuals and association should be conducted. On the principle of majority, it would mean that where one person remains holding the original principles of the Church there is no organised association of people. The issue is not that the person is alone at the time of secession from or division in the Church - it is that the one person adheres to the fundamental principles which define the Church. As long as there is no provision in the Constitution (on the basis of which he or she subscribed the principles and undertook to be bound by them) as to what should happen when he or she is in the majority his or her adherence to the fundamental principles is the decisive factor.

In this case, the exclusionary and distinctive principle to the effect that it is unlawful to associate with homosexuals and their supporters or sympathisers was put forward as a fundamental principle adopted by Dr Kunonga and his followers. It was later to be the original principle on which the Church of the Province of Zimbabwe would be founded. It became the creed or doctrine in terms of which their religious belief was expressed and on the basis of which they associated in the new Church. Their Church was to be identified by that doctrine.

The other factors, which show that Dr Kunonga and his followers no longer adhered to the fundamental principles of the Church on homosexuality and left it, but were not considered by the learned judge, are these;

When Dr Kunonga communicated to the Archbishop, on 21 September 2007, that they had withdrawn the Diocese of Harare from the Appellant Church he did not say they were still members of the Church. It is unreasonable to think that they could have withdrawn the Diocese of Harare from the Church whilst remaining members. This is particularly so when regard is had to the fact that the matter over which they differed with others in the Church touched them personally. The issue of associating with homosexuals and supporters or sympathizers of them which they had raised was about personal religion. They had agreed to associate with others on the terms and conditions contained in the Constitution. They were, in effect, saying that they did not want to be associated with the other members with whom they disagreed because they tolerated homosexuality. They could only avoid contact by withdrawing themselves from the Church.

It is not unusual for people to value separation from a Church as a safeguard for doctrines which they hold intensely and as to which they know that the surrounding world is indifferent or hostile. Free Church of Scotland v Lord Overtoun [1904] AC 515…,.

When it was brought to their attention, on 16 October 2007, that they had seceded from the Church, Dr Kunonga and his followers did not recant. They, instead, declared their resolve not to be intimidated into consorting with those who tolerated homosexuality. In the letter of 28 October, the clergymen make it clear that they had left the Church. They indicate that they were now in a position of freedom to join a new Church which was about to be formed. One cannot interpret their statement that the Dean of the Province was trying to coerce them, by letter of 16 October, to go back to the Church, to mean that they were still members of the Church. By their own words and conduct they made it clear to all who did not share their attitude on the subject that it would be an article of faith of a separate Church that homosexuals would not be tolerated.

Respect for human dignity is a fundamental principle of faith.

It must have been clear to Dr Kunonga and his followers that the position they had taken contradicted the basis of this material particular of the accepted expression of the doctrine of the Church which requires that every person be treated with respect and dignity. Once they adopted that position they separated themselves, automatically, from the Church and ceased to form part of it.

After the decision of the Extraordinary meeting of the Episcopal Synod, dated 20 December 2007, Dr. Kunonga and his followers did not recant their position. They went on to form their own Church thereby creating a schism. According to The Concise Oxford Dictionary (1990), a schism is “the separation of a Church into two Churches or the secession of a group owing to doctrinal, disciplinary differences.”

The court agrees with counsel for the appellant that the evidence proved that Dr Kunonga and his followers created the schism. The schism, in the circumstances of this case, is clear evidence of withdrawal of membership by Dr Kunonga and his followers from the Appellant Church. They left the Appellant Church and then formed the new Church.

A person who is responsible for the creation of a schism cannot be heard to say he or she has not withdrawn membership from the former Church. Even where a Bishop, Priest or Deacon of the Province, who is charged under Canon 24(1), with the offence of schism is found guilty by the Church Court, the only sentence that can be imposed is ex-communication. That other Church, the Anglican Church of the Province of Zimbabwe, could only have been formed after a secession from the Church by Dr Kunonga and members of the clergy and laity who supported him.

Evidence which the learned judge did not consider shows that they separated from the Church on a question of doctrine in that they considered it a rule of faith that homosexuals and those who support or sympathise with them should not be associated with in the public worship of God.

The argument that Dr Kunonga was acting in a representative or official capacity when he wrote the letter, of 21 September 2007, proves nothing.

No law authorized him, and others, to represent anyone in trying to do the impossible concerning the withdrawal of the Diocese of Harare from the Province. Withdrawal of membership from the Church was something exclusively within their power - as individuals. The minutes of the meeting of 4 August 2007 show that they discussed the question of withdrawal and agreed, as individuals, to withdraw from the Church. If they were acting in their official capacities they could only have been representing the Archbishop and the Province. That would be impossible because they were fighting these institutions. Individual withdrawal of membership from the Church was the natural consequence of the letter of 21 September. Whilst they represented no-one, Dr Kunonga and his followers did act in common purpose. Dr Kunonga's appointment as an Archbishop of his own Church clearly shows that he and his followers considered themselves no longer members of the Appellant Church.

There could not be more than one Archbishop in a Province.

Common sense indicates that Dr Kunonga could not have been doing what members agreed that office-bearers in his position would do for and on behalf of the Church. There never was agreement by the members that a Diocesan Bishop could write a letter to the Archbishop notifying him of a unilateral withdrawal of his diocese from the Province. Dr Kunonga was obviously advancing the secessionists' agenda.

A careful examination of the evidence shows that the learned judge overlooked admissions by Dr Kunonga and his followers that they withdrew their membership from the Church.

The Church made the allegation in case HC6544/07. They did not deny the allegation in their plea. They said they left the Province but remained in the Diocese of Harare. The same allegation was made by the Church in the opposing affidavit filed in Case HC4327/08. No answering affidavit was filed denying the allegation. The reason is that the case in the founding affidavit was that what had been done, in attempting to withdraw the Diocese of Harare from the Province, was lawful.

The simple rule of law is that what is not denied in affidavits must be taken to be admitted. Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Ors 1993 (2) ZLR 121 (S)…,.

It was only in the heads of argument, filed on 9 December 2007, in case HC4327/08, that it was contended that as the attempted withdrawal of the Diocese of Harare from the Province was a nullity all other acts done by Dr Kunonga and his followers were null and void. It was expressly admitted, in paragraph 13 of the heads of argument, that Dr Kunonga and his followers withdrew their membership from the Church.

What was specifically accepted was the allegation made by the Church in paragraph 44(C) of the opposing affidavit that “Dr Kunonga and his handful of followers left the Church.”

Not only did the learned judge overlook the admissions by Dr Kunonga and his followers on the question of withdrawal of their membership from the Church, but he made no mention of the argument on the effect of nullity. It is clear from a reading of the reasons for the judgment that his decision was not based on the point.

When counsel for the respondent advanced the same argument, on appeal, he unwittingly was on the side of the Church. He could not rely on the point of the effect of nullity without admitting that the learned judge was wrong in holding that the letter of 21 September 2007 did not constitute a notice of withdrawal of membership by Dr Kunonga and his followers from the Church.

In any event, the Court is of the view that the principle of the effect of a nullity, based on the obiter dictum of LORD DENNING in Macfoy v United Africa Co. Ltd [1961] 3 ALL ER 1169, cannot be used to nullify acts which are permitted and given effect by a separate law from that which created the nullity.

In this case, the act of withdrawal of membership from the Church was an exercise of the right to freedom of choice whilst the nullity arose from a breach of the rule on the status of a diocese in a Province.

Nullification of an act by one rule, because it is in breach of its requirements, cannot be applied to nullify an act permitted and given effect by another rule. The principle that there should be harmony between rules of the same legal order prevents such an internal contradiction arising in the legal order.

The second question is whether these facts show that Dr Kunonga resigned his office as Diocesan Bishop of Harare in the Appellant Church.

The court holds that they do. The reasons for the decision are these:

According to Article 4 of the Constitution and Canons of the Church, a vacancy in the office of a Bishop of any Diocese of the Province may be created by death, resignation or removal for any cause of the Bishop.

Canon 13(1) gives a Diocesan Bishop, who desires to do so, a right to resign from the office before the completion of his sixty-fifth year by giving written notice of the resignation to the Archbishop or to the Dean of the Province if the Bishop is the Archbishop. The resignation would take effect upon acceptance of it by the Archbishop or the Dean of the Province if the Bishop is the Archbishop.

It was argued, in the court a quo, that since Dr Kunonga did not give notice to the Archbishop of any resignation as Diocesan Bishop of Harare, he remained in office. The contention was that there cannot be a resignation of a Diocesan Bishop other than in terms of Canon 13(1).

The argument overlooked the effect of Article 4.

That means that the Constitution recognizes that there can be resignations which do not have to be contained in written notices to the Archbishop or Dean of the Province if the Bishop is the Archbishop. In other words, it does not have to be a resignation subject to the acceptance of the Archbishop. Article 4 applies to a resignation of any Bishop of a Diocese, including a Diocesan Bishop, whilst Canon 13(1) applies to a Diocesan Bishop only. Article 4 is consistent with the principle that a person will be deemed to have resigned from an office if evidence of his or her conduct shows that he or she exercised the right to resign notwithstanding absence of notice to the appropriate authority of an intention to resign.

There must be many people who leave offices in voluntary associations without giving notice.

If the contention by Dr Kunonga was to be accepted, it would mean a person could leave office and return to an organization when benefits arise as long as he or she can claim that he or she had not resigned office because no written notice was given.

Canon 12(4) gives the Archbishop the power to declare, with the consent of the majority of Bishops of the Province, the office of a Diocesan Bishop vacant in the event of him being absent from his Diocese for more than six months without good cause. The Bishop concerned would have resigned office within the meaning of Article 4.

It must be accepted that there can be resignation by conduct in addition to resignation by words. Sick and Funeral Society of St John's Sunday School v Golcar [1973] 1 Ch. 51…,.

Canon 13(1) is concerned with a person who, at the time he desires to resign, is willing to act in accordance with the procedure prescribed thereunder and recognizes the authority of the Archbishop or Dean of the Province if he is the Archbishop. The person intends to remain a member of the Church.

A person in the position of Dr Kunonga would find no moral justification for subjecting his resignation from the office of Diocesan Bishop to the procedure prescribed by Canon 13(1). By his own words and conduct he had placed himself in a position in which he felt no obligation to give due obedience to the Archbishop. He occupied an equivalent position of authority and reverence in another Church.

Resignation of a Bishop is a question of fact dependent on the evidence of the conduct of the individual.

Where the evidence shows that the individual exercised his/her right to terminate the relationship with the Church the resignation takes effect immediately the conduct is committed. This is so unless there is a special provision by virtue of which it takes effect upon acceptance by the person who is given the right to receive written notice and decide whether to accept the resignation or not.

The law is clear.

Whether it is under Article 4 or 13 resignation is a unilateral act. Its validity does not depend upon acceptance by the person to whom it is directed. Acceptance determines when the resignation takes effect. In the final analysis, it is for the court, and not the individual concerned, to decide whether his conduct amounts to resignation or not.

The facts show that Dr Kunonga was no longer a Diocesan Bishop in the Church. He took part in the formation of the new Church which he named the Anglican Church of the Province of Zimbabwe. He could not have accepted the post of Archbishop of the new Church whilst retaining the position of Bishop of the Appellant Church. He must have known that there could not be two Archbishops in the Province. He could not be both Diocesan Bishop of Harare and Archbishop of the Church of the Province of Zimbabwe which was a separate Church. He accepted the position in which the decision of the Episcopal Synod declared him to be in. From that position, he was able to accept the consecration and enthronement as Archbishop of the Anglican Church of the Province of Zimbabwe. He was also able to use the authority of the new office to consecrate and enthrone a number of people as Diocesan Bishops of the new Church.

It must go without saying that Dr Kunonga was able to act in the manner he did without attracting disciplinary charges from the Archbishop of the Appellant Church because he had withdrawn his membership from the Church, and, ipso facto, resigned the office of Diocesan Bishop. It would be unreasonable, in a case such as this, which requires proof on a preponderance of probabilities, to expect the Appellant Church to produce evidence of greater probative value than it placed before the court a quo in order to establish that Dr Kunonga resigned from the office of Diocesan Bishop.

The holding, by the learned judge, that the Church ought to have instituted disciplinary proceedings against Dr Kunonga with a view to passing the sentence of excommunication ignores a number of factors.

The procedure for the implementation of disciplinary proceedings shows that they can only be invoked against people who are still members and office-bearers of the Appellant Church. Once it is accepted, as it should be, that Dr Kunonga left the Church, and, ipso facto, vacated his office of Bishop of the Province, then it should be accepted that he was beyond the reach of the procedure referred to by the learned judge. Canon 24(1), which the learned judge relied on, states quite clearly that it is applicable to a “Bishop of the Province”.

Dr Kunonga was no longer a Bishop of the Province.

The purpose of the proceedings would be to discipline the member. Disciplinary action, which is the object of the proceedings provided for under Canon 24, is completely different from resignation. A person who has resigned from the office of “Bishop of the Province” effectively puts himself beyond the reach of the disciplinary proceedings. A Church cannot institute disciplinary proceedings against a person who is no longer its member or office bearer. The court holds that Dr Kunonga resigned as a Bishop of the Province of Central Africa and could not have been dealt with in terms of the disciplinary procedure prescribed by Canon 24.

The final question is whether Dr Kunonga and others remained members of the Board of Trustees of the Diocese of Harare, entitled to the control of the property of the Church.

The court holds that they did not. The reasons for the decision are these:

It is clear from the evidence, that, once Dr Kunonga and his followers left the Appellant Church they dis-entitled themselves from continuing as members of the Board of Trustees of the Church. They could only hold the positions of Trustees for the purposes of delivering services and protecting the property on behalf of the Province which is the owner of the property.

Article 20 of the Constitution, as read with Articles 21 and 23, establishes the Trusts upon which property belonging to the Church is held. Article 21 makes it clear that the duty of Trustees is to hold movable or immovable property in trust for and on behalf of the Provincial Synod. Article 23 provides that the Diocesan Trusts' Board is obliged to exercise over the property only those powers which are prescribed for it by the Provincial Synod. Under Article 18, the Provincial Synod is the only body with the power to frame such rules as may be necessary from time to time for the management of property held in trust for the Church. It has full power and authority to determine in what manner, and upon what conditions, such property shall be used or occupied.

When they left the Appellant Church, Dr Kunonga and his followers used the property and continued to control it - without the approval of or authority from the Provincial Synod. They could no longer have been acting according to the mandatory tenets of the Trust. The conditions under which they had held the property had changed. They could not separate the question of control of the property of the Church from the obligation to uphold and adhere to the fundamental principles on which the Church is founded and for the purposes of the maintenance of which it continues to exist. They used the property of the Appellant Church to further the interests of their new Church of the Province of Zimbabwe.

There can be no doubt that the original purpose of the property Trust was for the maintenance and support of the Church. It is clear from the provisions of the Constitution that the property belonged to the Church, as named in the Constitution, and was to be held for and on behalf of the Provincial Synod of that particular Church. The Church is one known to hold the faith described by the Constitution. The import of the Trust would be that the buildings, for example, should be enjoyed as places of religious worship by congregations of the said body of Christians called the Church of the Province of Central Africa. The property could not be applied to purposes which are alien to the purposes of the Trust and for the benefit of persons who have no title to call themselves members and office bearers of the Church. It would be unreasonable to think that the trust with which they would have been expected to act authorized Dr Kunonga, and others, to use the property for the achievement of the interests of their new Church.

In Chong v Lee (1981) BCLR 13…, HINDS J stated:

“Where a number of people group together to establish a Christian church and it is formed for the purpose of promoting certain defined doctrines of religious faith then expressed, property which the church acquires is impressed with a trust to carry out that purpose, and a majority of the congregation cannot divert the property to uses inconsistent with such defined religious doctrines against the opposition of a minority of the congregation - however small such minority may be.”

The principle is that in the absence of express provision in the Constitution of a voluntary association, such as a Church, property held in trust must be applied for the benefit of those who adhere to the fundamental principles of the association. Related to this is the principle that a member of a voluntary association who leaves the organization whilst others remain must leave the property with those who have not resigned membership. When one leaves a club one does not take its property with him or her.

It has long been established as a salutary principle of law in this area of property ownership that when one or more people secede from an existing Church they have no right to claim Church property - even if those who remain members of the congregation are in the minority.

From all the circumstances of the dispute between the Church and Dr Kunonga and his adherents, it is clear that they constituted the seceding party. They broke away from the Church citing irreconcilable differences on the question of tolerance of homosexuality. In the absence of evidence of a contract in terms of which the Provincial Synod directed that Dr Kunonga and his followers should continue holding, tenaciously, to Church property after they had withdrawn membership from the Church, the principle that the property must fall under the control and use of those who adhere to the fundamental principles of the Church must be enforced. Ethiopian Church Trustees v Sonjica 1926 EDL 107…,.

In Nederduitsch Hervomde Congregation of Rustenburg v The Nederduitsch Hervomde of Gereformeerde Congregation of Rustenburg (1895) 12 CLJ 140, KOETZE CJ said…,:

“Those, however, who, as members of the congregation of the former Hervomde Church of Rustenburg, however small their number might be, have not joined the union, still remain the Hervomde Congregation of Rustenburg, and are, as such, entitled to all the property and things belonging to, or standing registered in the name of the Hervomde Church of the Congregation of Rustenburg.”

In Zambezi Conference of Seventh Day Adventists v General Conference of Seventh Day Adventists & Anor 2001 (1) ZLR 160, after a dispute with the SDA, delegates to a local conference decided, on 20 December 1992, to secede from the Mother Church to form the Seventh Day Adventists. The new body claimed ownership of the properties of its predecessor. The claim was dismissed on the same principle that those who have left a Church have no claim to its property. McNALLY JA…, said:

“These individual members, who seceded from the Church, even if they be a majority of the members of a particular congregation, have seceded as individuals. They cannot have a claim to property of the SDA. They have formed a universitas, a new association of individuals. They cannot have a claim to property of the SDA. It may be that, as individuals, they subscribed towards the funds of the Church. But they did so as members. Having now founded a new universitas, they cannot, in law, claim ownership of Church property.”

There has been no dispute as to the ownership of the movable and immovable property the possession of which was claimed by the Appellant Church from Dr Kunonga and the others named in case no. HC6544/07. It is common cause that the property belongs to the Church. It has a right to an order for vindication of its property from possessors who have no right to have it. The learned Judge was wrong in giving Dr Kunonga and his followers the right to possess and control the property of the Church without its consent. They had no right to continue in possession of the congregational buildings when they had departed from the fundamental principles and standards on which the Church is founded. They left it putting themselves beyond its ecclesiastical jurisdiction…,.

For all these reasons, the judgment of the court a quo cannot stand. It is therefore ordered as follows:

1. The appeal in the case of The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare SC180/09 succeeds with costs.

2. The judgment of the court a quo, in case no. HC4327/08, is set aside and substituted with the following:

“The application is dismissed with costs.”

3. The appeal in the case of The Church of the Province of Central Africa v Bishop N. Kunonga & Ors SC130/10 be and is hereby allowed with costs.

4. The judgment of the court a quo, in case no. HC6544/07, is set aside and substituted with the following order:

“The claim is granted with costs.”

In HC7281/12 the applicant was sued by the first respondent for eviction from church premises located at Stand 5488-77^th Crescent, Glen View, Harare and related relief on the basis that he had joined another church organisation but continued to collect tithe from the congregation which he converts to his own use. The applicant contested the suit maintaining that he had not resigned from the first respondent and was therefore entitled to continue in occupation and doing whatever it is that he does at that church….,.

I am..., not persuaded that the applicant has a bona fide defence to the claim for eviction.

Specific allegations were made against him in the main matter which he has only brushed aside with bare denials. He was accused of joining another organisation, the International Life Centre Church and conducting its business from the first respondent's premises and collecting tithe money which he did not account for. He admitted collecting tithe but averred that the “plaintiff has not requested defendant to account for the money.”

If the applicant has his heart in another church and is introducing its systems then a schism may have occurred. A party leaving the church cannot lay a claim to the property of the church: The Church of the Province Central Africa v The Diocesan Trustees for the Diocese of Harare SC48-12; Guta RaMwari v Waduka & Ors HH470-14. There is therefore a case for the eviction of the applicant which has not been challenged in any meaningful way. For that reason, the applicant has not made a case for the indulgence of a stay of execution.

Accordingly, the application is hereby dismissed with costs.